Hamod v State of New South Wales

REASONS FOR JUDGMENT ON APPLICATION TO CROSS-VEST PROCEEDINGS TO SUPREME COURT OF NEW SOUTH WALES 1 Although the subject proceedings were commenced on 19 July 2000, the stage has not yet been reached for the filing of defences by the State of New South Wales ("the State") or by UBS Australia Limited ("UBS"). Until the Applicants (to whom I shall respectively refer as "Mr Hamod" and "Hamock") obtained single legal representation, following upon my reasons for judgment of 31 October 2002, pursuant to which I gave leave to the applicants to file in Court a fourth amended statement of claim, Mr Hamod had persistently endeavoured to undertake himself, or at least to exercise a dominant role in relation to, the drafting of the various statements of claim, and to the interlocutory motions made to the Court. That grant of leave was made conditional upon the excision therefrom of causes of action purportedly based upon the Trade Practices Act 1974 (Cth), and of a certain common law action. 2 Counsel and solicitors subsequently retained on behalf of the Applicants have filed in Court for the first time in these proceedings, that is on 11 April 2003, what appears to be an adequately pleaded statement of claim, confined in scope to certain common law causes of action which I had ruled to be viable in principle in my reasons for judgment of 31 October 2002. The hand of Mr Hamod is still recognisable in this latest pleading, by reason of the retention of Hamock as second applicant, and of the extraordinary quantifications of damages sought by each of the Applicants. The framework of the retained causes of action appears to have been made, generally speaking, in conformity with the principles of pleading. No further strike-out application has been made by either Respondent, although the retention of Hamock as Second Applicant will presumably continue to cause applications for security as to costs to be made by UBS. 3 Motions presently before the Court include the following: (i) an application filed on 7 February 2003 by UBS for a writ for levy on the property of the Applicants for an amount of $23,5000.00 plus interest, pursuant to a certificate of taxation bearing date 27 September 2002 pursuant to Order 37 rule 7 of the Federal Court Rules; (ii) an application filed on 21 February 2003 by the Applicants for the removal of the subject proceedings commenced in the Sydney Registry of this Court to the Supreme Court of New South Wales. 4 Apart from those two applications, UBS contends that there remains for further consideration a second further amended notice of motion, originally filed by UBS on 22 November 2000 and which should be treated as still on foot, in relation to orders sought by UBS on 23 April 2003 in the following terms: "1. The second applicant to provide security in respect of the second respondent's costs in the proceedings up to 24 September 2001 by way of bank guarantee in the amount of $39,439.85 within 28 days. 2. The proceedings by the second applicant against the second respondent be stayed if that security is not provided within 28 days. 3. The second respondent has liberty to apply from time to time to increase the amount of security provided by the second applicant. 4. The second applicant pay the second respondent's costs of paragraphs 3 and 4 of the second amended notice of motion dated 22 November 2000 and predecessor paragraphs in earlier versions of that notice of motion." This additional application for security evinces the intention of UBS to maintain on foot a process of ratcheting security for costs obligations upon Hamock on a continuing basis at intervals throughout the duration of the proceedings, so long as Hamock remains the Second Applicant. A similar course has not been taken against Mr Hamod, he not having of curse any corporate status. 5 In support of that application for security for costs, counsel for UBS submitted that on 24 September 2001 the matter of security for costs be stood over until taxation of the Second Respondent's costs had taken place before the Registrar, so that I would have a benchmark for the sums to be the subject of orders as to security for the Second Respondent's costs in the proceedings. 6 The State supports the Applicants' application to cross-vest the proceedings to the Supreme Court of New South Wales. In written submissions filed in Court on 14 April 2003, the State outlined its reasons and basis for so doing as follows: "The Court has a wide power to transfer proceedings pursuant to Section 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987. It must be satisfied that the "interests of justice" render another Court a "more appropriate" forum. In Spiliada Maritime Corporations v Cansulex Limited [1987] AC 460 at 467, Lord Goff said: '…A stay will only be granted on the ground of forum non conveniens where the Court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitable for the interests of all the parties and ends of justice.' Rogers A-JA in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 728, referred to the above speech of Lord Goff in the following terms: 'As Lord Goff said earlier 'the question is not one of convenience but of the suitability or appropriateness of the relevant jurisdiction.' The wrongful acts charged by the applicants have all been allegedly committed by the first respondent in New South Wales and in that sense the connection between the proceedings and New South Wales is close. The first applicant is a resident of New South Wales and the second applicant has its registered office in New South Wales. The expression "natural forum" is explained by Lord Goff in Spiliada at page 478 as: '… being 'that with which the action has the most real and substantial connection'.' The excision of the Trade Practices Act counts allow the remaining common law causes of action to be heard without impediment in the Supreme Court of New South Wales. That Court has a system of case management which should ensure that the matter progresses swiftly to trial. The Court should not transfer the proceedings to the Supreme Court of New South Wales until the Statement of Claim has been amended. The applicants have not complied with the orders made by the Court in the judgment of 31 October 2002. The applicants were directed to file the amended pleadings within 21 days of the judgment date. It would not be appropriate of the Supreme Court of New South Wales to involve itself in further interlocutory matters concerning the amendment of pleadings in circumstances where the applicants are in default of orders made in this Court. It is not anticipated that the first respondent would requisition a jury if the matter was transferred to the Supreme Court. This matter is not suitable for hearing before a jury owing to the complexity of numerous issues which will only serve to prolong the hearing and increase costs." 7 Since those written submissions on behalf of the State were filed in Court, the presently amended statement of claim (being the fifth such pleading) was filed by the Applicants in the Court's Registry on 11 April 2003 (see [2] above). The delay in so doing, after the giving of my reasons for judgment of 31 October 2002, has been understandable. As the recently retained counsel for the Applicants had earlier explained to the Court, the task of coming to an understanding of the very complex factual allegations made by the Applicants has been a formidable one for him, and he was not prepared to associate himself professionally with causes of action which had not been adequately pleaded in conformity with the complexity of historical circumstances briefed to him. In the result, the condition of the State's willingness to consent to cross-vesting of the proceedings to the Supreme Court was satisfied by the time of the hearing of the interlocutory applications the subject of these reasons for judgment. The facts and circumstances alleged in this most recently pleaded statement of claim continue to be of a grave and disturbing nature. 8 UBS had earlier produced to the Court on 12 March 2003 extensive and well researched submissions in opposition to the transfer of the proceedings to the Supreme Court. In summary, four grounds for opposition were propounded by UBS as follows: (i) The Federal Court retains jurisdiction over the proceedings, notwithstanding the striking out of causes of action based upon the Trade Practices Act1974 (Cth); I had acknowledged in principle that consequence from the outset in my reasons for judgment of 28 February 2001 at [63] thereof; (ii) There would be no advantage in transferring the proceedings to the Supreme Court; (iii) There may be disadvantages in transferring the proceedings to the Supreme Court; (iv) The Federal Court is not a "clearly inappropriate forum", and alternatively the "interests of justice" do not require the proposed transfer, particularly if a more liberal view is taken of the latter expression in the cross-vesting legislation, which is relevantly extracted in [10] below; The Applicants do not contest the first of those four propositions. 9 In any event, UBS submitted that the Court should not consider transferring the proceedings to the Supreme Court until all outstanding interlocutory matters are resolved, those matters relating essentially to costs of the proceedings incurred by UBS to date, for which UBS continues to seek to be paid or secured (as the case may be). In that regard, I record that no order for costs was made in relation to the proceedings the subject of my lengthy reasons for judgment of 31 October 2002 concerning the UBS partially successful application to strike out the fourth amended statement of claim. In support of the present submission, UBS tendered comprehensive affidavits of 25 February 2003 and 11 March 2003 made by the solicitor for UBS. Together they aggregate, with annexures, 237 pages in length. In addition UBS tendered written submissions of 24 pages in length. The Applicants provided no written submissions, contending orally that this latest statement of claim reflected my reasons for judgment of 31 October 2002. 10 The criteria for cross-vesting proceedings from the Federal Court to the Supreme Court of a State are contained in s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act"). That provision of s 5(4) of present relevance is sub-par (iii) of par (b) thereof, the full statutory context of which reads as follows: "(4) Where: (a) a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Federal Court or the Family Court (in this subsection referred to as the 'first court'); and (b) it appears to the first court that: … (iii) it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of a State… the first court shall transfer the relevant proceeding to that Supreme Court." 11 The issue therefore arising is whether it is in "the interests of justice" that the cross-vesting order sought by the Applicants, the making of which is also supported by the State and opposed only by UBS, ought to be made in the interests of justice. 12 The following four reasons were advanced by UBS for rejection of the application of the Applicants to cross-vest the proceedings: (i) The fact that claims under the Trade Practices Actare no longer to be pursued did not of itself constitute a reason for the Federal Court to decline to exercise its jurisdiction; so much may be readily accepted (see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 564 per French J, with whom Beaumont J agreed), the Applicants having commenced the proceedings in this Court and having correctly invoked the jurisdiction of this Court from the outset. (ii) An Applicant for cross-vesting of proceedings carries "at least a persuasive onus"; I would observe nevertheless that the onus "will seldom, if ever, be determinative at the end of the day" in the present statutory context (see James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 100 per Mason P, with whom Spigelman CJ and Priestley JA respectively agreed, at 1 and 119 of the reasons for judgment in that appeal). (iii) If the criteria for cross-vesting are not satisfied, the Court has no power to transfer the proceedings; it is not enough that a judge forms an intuitive view that this would be an appropriate thing to do. I was referred in that regard to Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394 where Wilcox J said as follows: "That question has to be resolved by reference to the criteria set out in the various subparagraphs to s 5(4)(b), the Court being required to make an order for transfer if it appears to it that any of these sub-paragraphs is satisfied. Conversely, if the criteria are not satisfied, the Court has no power to transfer the matter. The legislation does not authorise the transfer of a proceeding to another court simply because a judge forms an intuitive view that this would be an appropriate thing to do." Specifically as to the statutory notion of "the interests of justice", Wilcox J observed further at 394 as follows: "In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in "the interests of justice to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation." 13 UBS additionally emphasised the established principle that the striking out of the causes of action pleaded under the Trade Practices Actdid not deprive the Federal Court of its continuing jurisdiction in respect of "non-federal claims", referring thereby to the Full Federal Court decision in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 and in particular the well known passage at 219 appearing in the joint judgment of Bowen CJ, Morling and Beaumont JJ. That passage was subsequently followed in Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 481-482 (Neaves, Ryan and Gummow JJ). UBS applied successfully to have those statutory causes of action struck out as demurrable (see my reasons for judgment on the strike out applications handed down on 28 February 2001 in Hamod v State of New South Wales [2001] FCA 157, and on 31 October 2002 in Hamod v State of New South Wales [2002] FCA 1348). 14 UBS next submitted that there would be no advantage relevantly to the conduct of the proceedings in transferring the same to the Supreme Court of New South Wales, contrary however, I would observe, to the view of the State as First Respondent (see [6] above). In support of that submission, UBS pointed to the following factors: (i) The causes of action pleaded in the Fifth Amended Statement of Claim, filed on 11 April 2003 pursuant to the leave granted by me on 31 October 2002, arise under the common law of Australia, and there are therefore no causes of action "peculiar" to the State of New South Wales; (ii) There would be no procedural advantage in having the proceedings transferred to the Supreme Court of New South Wales; I was referred to the functions of the Supreme Court's Deferential Case Management List, and was informed that the processes involved in that List normally take up about 12-18 months from the time of filing of the statement of claim until call-over, and that thereafter an additional 3 months normally elapses before a final hearing commences before a judge; (iii) There would be no advantage in having a hearing in the Supreme Court upon the basis of oral testimony, rather than affidavit testimony in the Federal Court, and in any event, that situation is no different in the Federal Court, in the absence of an order or agreement to the contrary (Order 33 Rule 1 of the Federal Court Rules); and (iv) Physically in terms of location, no advantage would be gained. 15 The matter of advantage to the Applicants in any event in having a jury trial in the Supreme Court of New South Wales was next addressed by UBS. I observe in that regard that the State did not "anticipate" that it would for its part requisition a trial by jury (see [6] above). UBS submitted, first, that "there is little prospect of a jury trial in the Supreme Court", referring thereby to s 85 of the Supreme Court Act 1970 (NSW) ("Supreme Court Act"), as amended by the Courts Legislation Amendment (Civil Juries) Act 2001, which commenced on 18 January 2002, and provides as follows: "(1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise. (2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if: (a) any party to the proceedings: (i) files a requisition for trial with a jury; and (ii) pays the fee prescribed in the Regulations…; and (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings." 16 In that statutory context, UBS rejected any proposition to the effect that "the interests of justice require a trial by jury in the proceedings". UBS contended that given the complexity of the allegations of the Applicants, not only as to liability but also as to damages, the proceedings would be more efficiently and expediously tried by a judge sitting alone. UBS referred in that context to the dictum of O'Keefe J in Wilson v NSW Land and Housing Corporation [2002] NSWSC 506 at [6] as follows: "Under s 85 as it now stands, an additional requirement is imposed on a party who seeks a trial by jury. That requirement establishes quite a high threshold for the making of an order. It is not merely that the making of an order would be 'consistent with the interests of justice', or that it would be 'in the interests of justice', rather, the interests of justice must 'require' trial by jury. This provision, at least to some extent, appears to echo the effect of the English decisions in relation to applications for trial by jury." 17 UBS also referred to the Second Reading Speech in relation to the amendments to the Supreme Court Act effected on 28 November 2001, which stated that the same "… will restrict the use of civil juries to those cases where a special need is demonstrated," and also to Clause 19 of Schedule 4 to the Supreme Court Actin relation to its impact upon the abovementioned amending legislation, with arguably adverse consequences in any event to the Applicants' entitlement to a jury trial. Appreciating however that the present proceedings were commenced on 19 June 2000, UBS observed its duty to the Court by drawing my attention to the dictum of Derrington J in Matula v Monadelphous Engineering Associates Pty Ltd (Supreme Court of Queensland 22 October 1993 unreported) as follows: "… as it might be expected, the cross-vesting legislation provides that proceedings that have been transferred pursuant to an order under it will be deemed to have been commenced in the new jurisdiction at the time at which they were commenced in the old one [s.11 Jurisdiction of Courts (Cross-Vesting) Act (Qld) and see Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 at 662 per Rogers CJ Comm Div.]" UBS observed that the above dictum of Derrington J does not appear to have been cited in any reported or unreported decision in Australia, and contended that it was in any event incorrect, for the reasons set out below. 18 One such reason for that contention on the part of UBS was that s 11 of the Supreme Court Act does not provide in terms that proceedings which have been transferred pursuant to a cross-vesting order are deemed to have been commenced in the new jurisdiction at the time at which they were commenced in the old one. I was referred to s 11(3) of the Cross-Vesting Act which reads as follows: "Where a proceedings is transferred or removed to a court (in this subsection referred to as the transferee court) from another court (in this subsection referred to as the transferor court), the transferee court shall deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court (including the making of an order), or similar steps, had been taken in the transferee court." UBS submitted that s 11(3) prescribes how the transferee court is to "deal with the proceeding", and does not deem steps to have been taken in the transferor court to be steps taken in the transferee court. Rather, so the submission continued, the implicit assumption of s 11(3) is that steps taken in the transferor court are not of themselves steps taken in the transferee court, as otherwise there would be no need for a statutory directive to the transferee court to "deal with the proceeding" as if those steps had been taken in the transferee court. I do not think that the submission is correct; it appears to misconceive the import of the phrase "… as if… the steps that had been taken for the purposes of the proceeding in the transferor court… had been taken in the transferee court". 19 UBS submitted also that the purported reliance of Derrington J upon the dictum of Rogers CJ Comm Div in Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 was misconceived, since what the Chief Judge of the Commercial Division said relevantly, albeit obiter and merely tentatively, at 661 (not 662), in the context of limitation periods, was as follows: "It may be that… in some future case the problem may have to be considered, in the context of proceedings commenced in court A, in exercise of its cross-vested jurisdiction. If an order for transfer were to be made to court B, then it may be that, even if the proceedings in court A were commenced in time, the Jurisdiction of Courts (Cross-Vesting) Act 1987 s 11(3) would treat the commencement of proceedings as having been taken in court B and, therefore, arguably, out of time." That issue does not appear to have been taken up in any subsequent judgment in the Supreme Court, whether reported or unreported. In any event, as I have already indicated, I prefer the view that cross-vested proceedings are deemed at least implicitly to have been commenced at the time of commencement of the original proceedings. So much is, I think inherent in the statutory concept or notion of cross-vesting, and reflects what was observed by McLelland J in Lengyel v Rasad (1989) 99 FLR 130 at 133, in the context of cross-vesting proceedings from the Supreme Court of New South Wales to the Family Court, namely that "the benefit of the procedural steps and interlocutory orders already made in this Court will enure in the Family Court if the proceedings are transferred". 20 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2001) 113 FCR 42, Merkel J observed at 48-49, in the context of proceedings which had originated in the Federal Court, and were proposed to be cross-vested to the Victorian Supreme Court as follows: "9. For similar reasons I do not regard the State entities' reliance upon Federal Courts (State Jurisdiction) Act, and in particular s 11, to be well-founded. Under that section a party to a Federal Court proceeding that fails for want of jurisdiction can apply to the Supreme Court for an order that the Federal Court proceeding be treated for all purposes as a Supreme Court proceedings that is deemed to have been brought on the day the Federal Court proceeding was commenced. As explained above, the State entities' concern to maintain the validity of steps taken so far is met, in a practical sense, by the transfer and costs orders I propose to make. Further the statutory requirement that the Supreme Court proceedings be deemed to have been commenced on the date of the commencement of the Federal Court proceedings might itself give rise to uncertainty as, on that date, Pt 4A had not been enacted. In any event, I do not regard the State entities' claim that s 11 protects them from the uncertainties that might arise if their appeal on jurisdiction succeeds, to be a persuasive factor against a transfer of the proceeding under the CVA to the Supreme Court." I have already extracted s 11(3) of the Cross-Vesting Act in [18] above. The difficulty which his Honour addressed in par 9 of his reasons for judgment above cited, arose in the context of Federal Court proceedings which had been commenced prior to the enactment of Part IVA to the Federal Court of Australia Act 1976 (Cth). That is not the situation here. 21 In any event, UBS submitted that if the former statutory regime of the Supreme Court Act in relation to jury trials would apply to the subject proceedings, if cross-vested, the Supreme Court would most likely order, pursuant to the "old" section 89 of the Supreme Court Act, that all issues of fact be tried without a jury, given that a prolonged examination of documents or scientific or local investigation would be required, and could not conveniently be made with a jury. A juridical precedent for that course cited by UBS is Qantas Airways Ltd v Dillingham Corporation (NSW Court of Appeal 25 August 1988 unreported per McHugh JA, Kirby P and Clarke JA generally agreeing). There is force in that submission. 22 My conclusion in relation to the significance or otherwise of any entitlement of the Applicants to a jury trial is that it would be unsafe to do otherwise than give no weight to that possible factor. The proceedings have not yet been advanced beyond the filing of the Fifth Amended Statement of Claim on 11 April 2003 (and of course the accompanying Further Amended Application). It may well be that under the supervision of the Applicants' present legal representatives recently appointed, the finalisation of pleadings and discovery will be advanced expeditiously, and to an extent which will underline to the Applicants the expediency of a trial by judge alone. By that time also, the State's presently uncommitted attitude to trial by jury or otherwise will doubtless have crystallised in favour of a trial by judge alone. Unless by that time, the Applicants have rationalised their case in damages, both in nature and scope, to a realistically commercial level, I would think it unlikely that any discretion to mandate a trial by jury would be exercised by the Supreme Court in favour of the Applicants, if that was then their preferred course. 23 The resolution therefore of the issue, as to whether the proceedings should be transferred to the Supreme Court, boils down to the circumstance that the Applicants, as prosecutors thereof, seek the adoption of that course, and are supported to that extent by the State as one of the two respondents. That factor persuades me that it is in the interests of justice, within s 5(4)(b)(iii) of the Cross-Vesting Act, that the relevant proceedings be determined by the Supreme Court, notwithstanding the opposition of UBS as the remaining party to the proceedings. That is essentially because it is the wish of two of the three parties to the proceedings, including most importantly the Applicants as proposed Plaintiffs in the Supreme Court (who in that context I would characterise as a single party). In that regard, I observe that Ipp J (as he then was) in Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1989) 1 WAR 531 at 538 expressed the view that the operation of s 5(2)(b)(iii) of the Cross-Vesting Actmay involve "the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked to be taken into account", and further that "[t]here is no reason to exclude this important right from a consideration of the interests of justice". It is true that the Applicants invoked the jurisdiction of the Federal Court in the first place, but the statutory causes of action based on Federal legislation which the Applicants sought to pursue have since been disallowed by me. The causes of action remaining are confined to the common law causes of actions of conspiracy, false imprisonment, malicious prosecution, trespass to property, detention, conversion, injurious falsehood and breach of duty of care. The principal function of the Supreme Court in its Common Law Division is the conduct of proceedings based on common law causes of action. The Federal Court has from time to time determined common law causes of action, where the same were brought concurrently with statutory based causes of action (albeit that subsequently, as in Burgundy Royale, the latter have been subsequently discontinued). If the Applicants fail to establish entitlement to the substantial quantifications of economic loss presently propounded by each of the Applicants, there would still remain for adjudication the Applicants' claims for unliquidated damages for personal injury and deprivation of liberty in relation to the startling incidents which allegedly befell Mr Hamod in the course, and by virtue, of his arrest and imprisonment, being claims for damages which the Supreme Court in its Common Law Division has obviously greater expertise and experience than the Federal Court. 24 In reaching the conclusion in principle which I have as to cross-vesting the proceedings, I should add that I am of the opinion, in the light of the nature of the surviving causes of actions presently pleaded, and the particulars of damage thus far projected, that it is too speculative at this stage to predict, as UBS has sought to do, that there is any likelihood of delays which would result from the cross-vesting of the proceedings to the Supreme Court. UBS has asserted that delays would be prejudicial to UBS, for reasons of the kind identified by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 566, namely loss of memory, loss of documents, and the death, departure or disappearance of witnesses. No specific exemplification of that claim however has been provided by UBS, and the same has been advanced merely as a general prognosis. Moreover I have not thus far perceived any haste on the part of UBS to cause the final hearing of the proceedings to take place. Without tracing over old ground in any detail, UBS has been the major originator of the numerous interlocutory proceedings to date. I might add that UBS, as well as the State, has long been aware, of the disconcerting testimony given by Mr Hamod at the hearing of his committal proceedings in the Local Court, and the reasons for dismissal of those proceedings by the presiding magistrate (see [34] of my reasons for judgment of 28 February 2001), and the disturbing allegations otherwise made by Mr Hamod at those committal proceedings summarised in [63] of my subsequent reasons for judgment of 31 October 2002. The immensity of the detail provided in the earlier prolix statements of claim, which I ordered to be struck out, have more than adequately foreshadowed to UBS the evidence which the applicants may seek to adduce. 25 The concluding basis for the opposition of the Applicants to the cross-vesting of the proceedings to the Supreme Court involve the unsatisfied costs orders, and security for costs orders, referred to in [3-4] above. At the hearing of the proceedings, counsel for the Applicants stated that payment by cheque of the outstanding costs order for $23,500.00 had been made to UBS on the previous day, and the provision of security for costs in favour of UBS in the sum of $39,000.00 was in the course of being finalised, either by way of a mortgage of realty or the lodgment of a bank guarantee. Whether that provision for security has been since finalised should not delay the making of a cross-vesting order to which the Applicants are otherwise entitled. In my opinion, the operation of the Cross-Vesting Act and s 5(4) thereof in particular, is such that all incomplete interlocutory processes, and the benefit of enforcement of outstanding, as well as accrued entitlements to costs already crystallised, or yet to crystallise, remain as ongoing incidents to the proceedings the subject of a cross-vesting order. Any contrary operation of the legislation could readily operate to frustrate the benefits of an entitlement otherwise to the cross-vesting relief. 26 In the result, the Applicants are entitled to the cross-vesting relief sought, which, as I have earlier indicated, is supported by the State. Given the strenuous resistance of UBS to the cross-vesting relief sought by the Applicants, UBS should pay the costs of the Applicants of the subject of the application for that relief. Consistently with what I have already mentioned, the implementation of that order for costs would appear to be a matter for administration by the Supreme Court of New South Wales. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.