Hamod v State of New South Wales

5 On 26 April 2001, Conti J made further orders in the following terms: "1. All Motions before the Court be stood over to 18 May 2001. 2. The time to replead a Further Amended Statement of Claim and Amended Application be extended for fourteen days to 11 May 2001. 3. The Costs be reserved." His Honour's reasons for judgment in respect of those orders are published as Hamod v State of New South Wales [2001] FCA 495. 6 On 24 September 2001, Conti J made the following orders: "1. The Applicants pay the costs of each of the Respondents of the original statement of claim filed herein and subsequently abandoned. 2. The Applicants pay the costs of each of the Respondents of the strike- out proceedings relating to the amended statement of claim, including the costs of the proceedings held on 24 September 2001, with leave to have such costs taxed forthwith." His Honour's reasons for judgment in respect of those orders are published as Hamod v State of New South Wales [2001] FCA 1389. 7 On 12 October 2001, on his own behalf and as director of Hamock Investments, Mr Hamod filed in the Court a purported notice of appeal. Mr Hamod is named as the first appellant and Hamock Investments as the second appellant. The State of New South Wales and UBS Australia Limited are named as the first and second respondent respectively. By the notice of appeal the appellants purport to appeal from the whole of the judgment of Conti J given on 24 September 2001 and from the whole of the judgments of Conti J given on 26 April 2001 and 28 February 2001. 8 The appellate jurisdiction of this Court is conferred on it by s 24 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). By s 24(1)(a) the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge. This jurisdiction is qualified by s 24(1A), which provides: "An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal." All of the judgments to which the notice of appeal refers are plainly interlocutory. They do not finally determine the rights of the parties in proceeding no. N 643 of 2000. See Carr v Finance Corporation of Australia Ltd No. 1 (1981) 147 CLR 246 at 248 per Gibbs CJ and 253 - 254 per Mason J; and Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 767 - 768 per Gibbs CJ, with whom Murphy and Wilson JJ agreed. 9 Order 52 r 10 of the Federal Court Rules provides that an application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement. If this is not done, subr (2) requires an application to be made by notice of motion to a single judge or to a Full Court. By subr (2)(b), the notice must be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a judge may allow. It does not appear that leave to appeal was sought from or granted by Conti J at the time when his Honour pronounced any of the interlocutory judgments in question. 10 At a callover of appeals on 31 October 2001, Sackville J made orders making it clear that Mr Hamod and Hamock Investments needed leave to appeal. Mr Hamod suggested in argument before us that Sackville J had granted leave to appeal from the judgment of Conti J of 24 September 2001. The terms of his Honour's order made it clear that this was not so. The first order directed the appellants to file and serve any applications for an extension of time in which to seek leave to appeal, and any application for leave to appeal, within fourteen days, together with any affidavits in support. In the second order, his Honour referred to "the purported appeal". 11 As a result of the callover of appeals on 31 October 2001, Mr Hamod appears to have realised that leave to appeal was necessary if he and Hamock Investments were to proceed with their appeal. On 14 November 2001, he filed a notice of motion seeking, among other orders, an extension of time for the applicants to file an application for leave to appeal all of the orders and directions of Conti J, including specifically those of 24 September 2001, 26 April 2001 and 28 February 2001. The motion was heard by Katz J, who delivered judgment on 7 December 2001, see Hamod v State of New South Wales [2001] FCA 1766. His Honour ordered that: "1. The application be dismissed. 2. The applicants pay the respondents' costs of the application." 12 In his reasons for judgment at [13], his Honour characterised the interlocutory judgments sought to be made the subject of the grant of leave to appeal as decisions on points of practice. At [14] - [16], his Honour rejected Mr Hamod's argument that substantial injustice would result if leave to appeal were refused. At [17], his Honour concluded that, as to none of the interlocutory judgments, was he persuaded that the correctness of the interlocutory judgment was attended by sufficient doubt, or that there was some error of law or logic. At [19], his Honour rejected a submission that there had been some error in principle in Conti J's approach to the question of the sufficiency of the amended statement of claim. At [20], Katz J decided to dismiss the application insofar as it sought extensions of time within which to seek leave to appeal from the various interlocutory judgments. His Honour recognised that this would have the necessary effect that the entire application by way of the notice of motion filed on 14 November 2001 would be dismissed. This conclusion is reflected in his Honour's orders.

13 By notice of motion filed on 25 October 2001, the second respondent sought orders that the purported appeal be dismissed as incompetent, the purported notice of appeal be struck out, and the second respondent have its costs of and incidental to the notice of motion and the appeal. By notice of motion filed on 22 November 2001, the first respondent sought similar orders. By notice of motion filed on 15 February 2002, Mr Hamod sought the following orders: "1. The appointment for the settlement of the Books of appeal be adjourned to a date in mid March 2002; 2. The Hearing of the Appeal of the Appellants be adjourned to a date in late March or April 2002; 3. His Honor [sic] Justice Conti disqualify himself from hearing of the proceedings in the matter of 643 of 2000; 4. Set aside the orders and the 'Reasons for Decision' delivered by his Honor [sic] Justice Conti on 24 of September 2001 in the matter of 643 of 2000; and or alternatively 5. Stay any proceedings of the Respondents pursuant to the Orders of Justice Conti of 24 of September 2001 in the matter of 643 of 2000; 6. Set aside all of the directions and remarks made by his Honor [sic] Justice Conti on 21 of September 2001 in the mater [sic] of 643 of 2000; 7. Set aside all of the orders and Reasons for Decision delivered by his Honor [sic] Justice Conti on 26 of April 2001 in the matter of 643 of 2000; 8. Set aside all of the orders and Reasons for Decision delivered by his Honor [sic] Justice Conti on 28 of February 2001 in the matter of 643 of 2000; 9. The Respondents in the matter of 643 of 2000 cease from serving on the Applicants Notices of Motion and submissions and correspondences after business hours and outside the Rules of the Honorable [sic] Court; 10. The correspondences and documents of the Respondents in the matter of 643 of 2000 be served on each of the Applicants by fax or mail in clear legible form and within business hours; 11. Leave be granted to the First Applicant to represent the Second Applicant in the proceedings of 643 of 2000; 12. Leave be granted to the First Applicant to continue to represent the Second Applicant in the matter of 1418 of 2001; and 13. Such Further or other orders the Honorable [sic] Court considers appropriate; 14. Costs be costs in the cause; And or in the alternative 15. Leave to transfer the matter of 148 of 2001 and the matter of 643 of 2000 to the High Court of Australia". 14 It is clear that the notice of appeal filed on 12 October 2001, did not bring into existence a valid appeal. Because all of the judgments appealed from are interlocutory judgments, leave to appeal was necessary before a valid appeal could be instituted. Even if this defect of the notice of appeal could have been cured by the subsequent grant of leave to appeal, there has been no subsequent grant of leave to appeal. The effect of the judgment of Katz J, refusing to extend the time fixed by O 52 r 10(2)(b) of the Federal Court Rules for the making of an application for leave to appeal was to prevent Mr Hamod and Hamock Investments from applying for such leave. In the absence of any grant of leave to appeal, the notice of appeal filed on 12 October 2001 has not enlivened the appellate jurisdiction of the Court under s 24 of the Federal Court Act. 15 Mr Hamod made to us what might, on one view, have amounted to an oral application for an extension of time to apply for leave to appeal and for leave to appeal. In view of the fact that his previous application for such an extension of time was refused by Katz J, the question arises whether a further application can be made. Section 24(1A) and s 25(2) of the Federal Court Act make it clear that only one application for leave to appeal can be made. See Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 426, and the cases there cited. This is because the consideration of an application for leave to appeal is an exercise of the Court's appellate jurisdiction and the Court cannot hear an appeal from its own decision on an appeal. Section 25(2)(b) of the Federal Court Act makes it clear that an "application for an extension of time within which to institute an appeal to the Court" also invokes the appellate jurisdiction of the Court. These words are apt to include an application for an extension of time to seek leave to appeal. A purposive construction leads to the same conclusion. Repeated attempts to seek extensions of time for leave to appeal are in the same category as repeated attempts to enlarge the time allowed for filing a notice of appeal. It follows that a further application for an extension of time in which to seek leave to appeal cannot be dealt with. In the absence of an extension of time for leave to appeal, no application for leave to appeal can be dealt with. In those circumstances, an order should be made putting an end to the purported appeal. 16 Most of the orders sought by Mr Hamod in his notice of motion filed on 15 February 2002 do not in their terms relate to the purported appeal. Those numbered 1, 2 and 12 do. There can be no point in making any of those orders when there is nothing to adjourn or in which Hamock Investments can be represented. Those numbered 4, 5, 6, 7 and 8 seem in themselves to be an attempt to appeal from various judgments of Conti J. Those attempts must fail for the same reason as the attempt to appeal by the notice of appeal filed on 12 October 2001 must fail, namely, the absence of leave to appeal. The motions for orders numbered 9, 10, 11 and 14 seem to be an attempt to persuade the Full Court to give directions for the conduct of the proceeding in matter no. N 643 of 2000. In respect of those matters, and the proposed order numbered 3, seeking to disqualify Conti J from hearing matter no. N 643 of 2000, these are not appropriate matters for a Full Court other than on a properly constituted appeal from a judgment of a single judge. The Court has no power to make proposed order 15 giving leave to transfer a matter to the High Court of Australia. The motion for order 13 has not been invoked by reference to any order that the Court might consider appropriate. Mr Hamod's motions must therefore be dismissed. 17 The respondents seek their costs of the purported appeal and of the various notices of motion. They have been successful on their motions and on those of Mr Hamod. Section 43(1) of the Federal Court Act, expressly empowers the Court to award costs in respect of proceedings dismissed for want of jurisdiction. The purported appeal is such a proceeding. In the ordinary course, costs should follow the event. 18 The second respondent has also sought an order that costs should be on an indemnity basis. Its application was based on correspondence from its solicitors to Mr Hamod, warning that it would contend that the purported appeal was incompetent. The first item of correspondence was a facsimile message dated 17 October 2001. The second respondent's solicitors advised Mr Hamod that leave to appeal was required. Having regard to the form of the notice of appeal the letter reserved the right of the second respondent to apply to have the appeal dismissed, even if leave were obtained. By a facsimile message dated 23 November 2001, the solicitors referred to an appointment to settle the index of appeal papers. They repeated that the appeal was incompetent. By letter dated 5 February 2002, a Deputy District Registrar of the Court advised the second respondent (with a copy to Mr Hamod) that the judgment of Katz J delivered on 7 December 2001 gave rise to the question whether there was any subject matter in respect of which the appeal could proceed. This was on the basis that, if all relevant orders were interlocutory orders and therefore required leave to appeal, which was refused by Katz J, it might be the case that there was no valid appeal. The letter indicated that the parties would be expected to make submissions on this issue at the hearing of the appeal. In a facsimile message dated 11 February 2002, the solicitors for the second respondent referred to this letter and attached a copy. They informed Mr Hamod that they would submit that, by virtue of the orders of Katz J on 7 December 2001, there was no valid appeal. In a facsimile message of 12 February 2002, the solicitors again referred to the judgment of Katz J. They invited Mr Hamod to concede by 10.00 am on Thursday 14 February 2002 that there was no appeal. If not, they stated that they would comply with the directions of the registrar to prepare a bundle of documents for the hearing of the appeal. They threatened, for the first time, to seek indemnity costs. Finally, in a facsimile message dated 20 February 2002, the solicitors for the second respondent reiterated to Mr Hamod that, in the light of Katz J's judgment of 7 December 2001, the appeal was incompetent. 19 The power and discretion, with respect to costs, given to the Court by s 43 of the Federal Court Act, include a power and discretion to award indemnity costs in appropriate cases. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401, Woodward J said: "I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the Court will need to consider how it should exercise its unfettered discretion." 20 Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs. 21 In the present case, the starting point must be that Mr Hamod does not have legal qualifications. He has not been "properly advised" whether through his own choice or otherwise. Hamock Investments appeared before us by a solicitor but he was engaged to act for Hamock Investments only earlier this week and appeared at a lengthy directions hearing before Conti J yesterday. Prior to that, Hamock Investments had no legal representation in the appeal. It would not have been unreasonable for Mr Hamod to have regarded the second respondent's solicitors' messages of 17 October 2001 and 23 November 2001 as making tactical threats with a view to advancing their client's interests. 22 From the material filed by Mr Hamod, it appears that on 10 December 2001 he attended before a deputy district registrar for the purpose of settling an index to the appeal papers. The respondent's representatives were not there. The deputy district registrar advised Mr Hamod that Katz J had dismissed the motion and the notice of appeal. Mr Hamod was then of the view that the appeal had been terminated. This view was confirmed by his receipt of the orders and the reasons for judgment of Katz J on or about 16 December 2001. Acting on the advice and the judgment of Katz J, Mr Hamod cancelled his instructions to solicitors and counsel to prepare submissions and to represent him and Hamock Investments in the appeal. He did nothing further until he received a letter dated 5 February 2002 from a deputy district registrar of the Court on or about 7 February 2002. This was not the letter earlier referred to but another, making an appointment to settle the index of appeal papers on 12 February 2002. Mr Hamod says that this, in conjunction with the other letter of 5 February 2002, caused him to believe that there was still some substance in the appeal. He attempted to obtain an adjournment both of the hearing of the appeal and of the settling of the index of appeal papers. He was told he would have to file a notice of motion, he did so on 15 February 2002. 23 In these circumstances, the grant of indemnity costs is unwarranted. It could not be said that Mr Hamod acted unreasonably by doing nothing after 10 December 2001 or by reviving his interest in the appeal after the two letters of 5 February 2002. 24 Having regard to the events which occurred on and after 7 December 2001, the appropriate order for costs is that the costs of all parties of the purported appeal, after 7 December 2001, should be costs in the cause in the principal proceeding, but that the respondents should have their costs of the purported appeal up to and including 7 December 2001. 25 The following orders should therefore be made: 1. The purported appeal be dismissed as incompetent. 2. The motions the subject of the notice of motion filed on 15 February 2002 be dismissed. 3. Anthony Hamod and Hamock Investments Pty Limited pay the respondents' costs of the purported notice of appeal, the notice of motion filed on 25 October 2001, the notice of motion filed on 22 November 2001, up to and including 7 December 2001. 4. The costs of all parties of the purported appeal, the notice of motion filed on 25 October 2001, the notice of motion filed on 22 November 2001 and the notice of motion filed on 15 February 2002 after 7 December 2001, be costs in the cause in proceeding no. N 643 of 2000. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

CARR J: 26 I join in making those orders for the reasons just given by the learned presiding judge. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

GOLDBERG J: 27 I agree with the reasons of the learned presiding judge and the orders which he has proposed. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Solicitor for the Second Appellant: Wakeling & Associates

Solicitor for the First Respondent: NSW Crown Solicitor

Solicitor for the Second Respondent: Allens Arthur Robinson

Date of Hearing: 22 February 2002

Date of Judgment: 22 February 2002