Hamod v State of New South Wales

D E Baran (Plaintiffs) COUNSEL : M T Hutchings (First Defendant) M R Speakman SC (Second Defendant)

Simon Diab & Associates (Plaintiffs) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020147 of 2003 Anthony Hamod v State of New South Wales & UBS Australia Limited

JUDGMENT 1 HARRISON J: This matter came before me on 29 June 2007 for directions. On that occasion counsel for the plaintiff sought an amendment to what was the then current timetable for directions as the plaintiff was unable to comply with those orders in relation to the preparation of affidavits upon which the plaintiff intended to rely. Counsel for the plaintiff indicated that those affidavits were then expected to be ready by the following Wednesday, 4 July 2007. 2 Counsel for the plaintiff outlined at that time what steps had been taken with respect to the preparation of the plaintiff's evidence. Although on an earlier occasion I had been advised by the solicitor for the plaintiff that something in the order of 20 witnesses would be called, whose statements would need to be prepared and served upon the defendants, that number had diminished somewhat by the time of the last directions hearing. 3 A draft of proposed Short Minutes of Order containing a revised timetable for directions was produced. In due course I made orders for all relevant purposes in accordance with that draft.

4 Order 4 was in the following terms:- On or before 13 July 2007:

(a) the first and second plaintiffs serve on each of the defendants witness statements and expert's reports of all the evidence of lay witnesses and experts that they will seek to adduce in evidence in chief in relation to their claims against the first defendant; and

(b) the first plaintiff serve on each of the defendants witness statements and expert's reports of all the evidence of lay witnesses and experts that they will seek to adduce in evidence in chief in relation to their claims against the second defendant. 5 When the matter came before me yesterday counsel for the plaintiff informed me that witness statements and experts reports had not been served in accordance with that Order. I was also informed that the plaintiff had prepared, and had either served, or was in a position immediately to serve, statements from three lay witnesses being a very long statement of the plaintiff and two others. However, exhibits to the plaintiff's statement, expected to exceed 15,000 pages, comprising 100 lever arch folders, had not been completed because of what was described as technical difficulties related to scanning of those documents. Those documents will apparently be available, collated in the form upon which the plaintiff intends to rely upon them as exhibits, by no later than 31 July 2007. 6 Counsel for the plaintiff was clearly resigned to the fact, and conceded as much in terms, that in the circumstances the plaintiff would be bound by the terms of Order 12 made by me on the last occasion and would, as things presently stand, be limited to reliance upon the three statements to which I have referred, unless some other order were made. For completeness I note that the terms of Order 12 are as follows:- 12. The plaintiff not be entitled to rely on any witness statement that has not been provided in accordance with the timetable, except with leave of the trial judge. 7 Counsel for each of the defendants before me yesterday both sought an order that the hearing date of 29 October 2007 be vacated in the circumstances. This is in contrast to the position adopted by the first defendant on the last occasion when I was informed by him that he did not consent on that occasion to any vacation of the hearing date and wanted the matter to be heard this year. The first defendant's concerns in this regard were outlined by counsel in some detail. The following is a portion of the submission made by counsel for the first defendant on the last occasion:- "HUTCHINGS: I am happy to convey the position of the first defendant in that respect. We earnestly want this matter heard this year. It has been around far too long. I am concerned if the date is vacated we will end up in 2008 or 2009 troubling your Honour again with these proceedings. We are very anxious that this matter gets on." 8 Counsel for the second defendant was on the last occasion content for the hearing date to be retained subject first to an amendment to the timetable (which is what occurred). His submissions in this respect were as follows:- "SPEAKMAN: Absolutely. We are very keen to have this matter to get on. We have been waiting seven years for a hearing date, since the mid-1990s, every time we come here or before another Justice of the court, we are hearing another colourful story and sometimes involving colourful slurs on our reputation." 9 Secondly, counsel for the second defendant indicated that his client required access to the Platinum Certificate, which is at the heart of the present dispute, in order that it could be examined by Mr Westwood, an expert forensic document examiner. I will return to that issue shortly.

10 The orders which I made by consent on the last occasion also included Order 10 which is in the following terms:- 10. In the event of any party being in default of any order or any part of an order for a period exceeding three working days, that party to list the matter before Justice Harrison forthwith and to produce at court on that day an affidavit setting out the circumstances of delay and explaining, if explanation is possible, the reasons for it.

11 Counsel for the plaintiff concedes that the timetable has been breached by the plaintiff and he offered, from the Bar table, the explanation for that delay to which I have already referred. Order 10 was not complied with by the plaintiff and no explanation for his failure to comply with it was provided.

12 It is also relevant to observe that the first defendant has lodged an appeal with the Court of Appeal against the decision of Justice Simpson dismissing the first defendant's appeal from the decision of Associate Justice Harrison ordering the first defendant to provide discovery on certain terms. I declined on the last occasion to grant a stay of Associate Justice Harrison's orders, preferring instead that the first defendant make that application to the Court of Appeal as part of its proceedings in that Court. I am now informed that a stay was ordered by the Court of Appeal with the consent of the plaintiff.

13 During the course of argument before me on 18 July 2007 counsel for the plaintiff indicated that he could not resist an order that the hearing date be vacated if his client did not comply with the orders that I subsequently made on that day. It is appropriate to record the precise words that were used. They are as follows:- "BARAN: I could not resist an order being made that if [the plaintiff] was unable to comply by the date set by your Honour that the hearing date would be vacated." When reminded of this concession by me yesterday, counsel for the plaintiff indicated that the problems which now confront the plaintiff were not foreseen by him when he made that concession and, in effect, were wholly unforeseeable. Indeed, counsel for the plaintiff was at pains to point out on the last occasion that a vacation of the hearing date was his least preferred option. In this respect he said the following:-

"BARAN: Just to answer your Honour's question before, we would not want under any circumstances to vacate the date so if your Honour wants to extend it by a shorter period, say by 14 or 15 July, we would work within that time frame." 14 It should not pass without comment that in the circumstances as they have now emerged before me, even compliance with the deadline referred to in the passage just quoted proved unattainable. 15 It is necessary to observe, however, that shortly before 5.00am today my Associate received by facsimile transmission a draft affidavit from the solicitor for the plaintiff together with a letter advising that he proposed to swear it and seek leave to file it in court this morning before me. I am presently unaware that copies of the affidavit have been provided to the defendants. I have taken the liberty of reading the proposed affidavit and I have given consideration to the matters with which it deals, in anticipation of a grant of leave to file it in court and read it as evidence before me. 16 Briefly, Mr Diab indicates that he would be able to serve the outstanding exhibits to the plaintiff's affidavit on the defendants by 23 July 2007. Mr Diab has described the significant efforts he has made already and the work he will be required to perform before that date if his prediction is to be made good. Unfortunately, in my opinion, the time for a monumental effort to get the plaintiff's case in order has already passed. Indeed, I indicated as much on the last occasion.

17 The plaintiff's case, pared to the bone, is conceptually quite simple. Although the material upon which the plaintiff wishes to rely in order to prove his case is patently voluminous, the circumstances giving rise to the proceedings are now quite old and have had an indifferent history both in the Federal Court of Australia and in this Court. One might reasonably have expected, in the normal course of events, that they would have been prosecuted to finality well before now.

18 Counsel for the plaintiff urges upon me that the plaintiff is a pensioner, of limited means, and anxious to have the matter finalised. On the last occasion my attention was drawn to the fact that the plaintiff had recently undergone significant surgery which by implication had severely disrupted his ability to attend to this case. Those submissions are to some extent contradicted by the long term history of the proceedings on the one hand and the recent, somewhat more confined, events on the other hand. It was not put to me specifically that delays in preparation of the plaintiff's case are the direct or indirect result of his financial position. No evidence has been led in aid of a submission that a further delay in the hearing of the matter will occasion particular or irreparable prejudice to the plaintiff.

19 The first and second defendants each argue that, by reason of the plaintiff's failure to comply with the terms of the original timetable, they will have been deprived of sufficient time within which to prepare their own statements of evidence in response. In response to this counsel for the plaintiff indicated that the plaintiff would be willing to enlarge the period for the defendants to respond so as to ameliorate or limit the extent of any inconvenience to the defendants occasioned by the plaintiff's breach.

20 As indicated earlier, the second defendant seeks access to the Platinum Certificate for forensic examination. In support of that application the second defendant relies upon an affidavit of Paul Denison Westwood sworn 12 July 2007. Mr Westwood deposes to his proposal to examine the document without undertaking what he refers to as "any invasive examinations … such as ink and paper analyses". By "invasive examination" Mr Westwood means "any procedure that results in the Certificate being altered or damaged in any way as would be the case if ink or paper samples were extracted" from it. Mr Westwood gives other details of the techniques he proposes to adopt if given an opportunity to examine the Platinum Certificate.

21 The plaintiff objects to the Certificate being examined at all. The plaintiff has indicated, through his counsel, that the Certificate is extraordinarily valuable and that it would cost an inordinate sum of money, said to be in the order of between $200m and $400m just for transport insurance, in the event that it was removed from its present location so that Mr Westwood's forensic examination could take place. I accept for the purpose of these remarks that the plaintiff has no prospect of insuring the certificate for that reason alone. I will continue to assume, therefore, that whatever may be the present location of the Certificate, it can never be insured if transported from that location. The evidence does not reveal whether or not it is currently insured whilst it remains in its present location. 22 Mr Westwood has given evidence that it is not feasible for him to conduct the examinations he has described in his affidavit at a location other than his Forensic Documents Services Laboratory at 5 Victoria Parade, Manly. Reasons for this contention include, but are not limited to, the fact that expensive and sensitive instruments, located at his premises, are necessary for the work he proposes to perform and they are not conveniently able to be transported without significant risk of damage and the incurring of associated costs of repair or replacement. The Certificate, by contrast, is obviously in a different category.

23 The plaintiff argues that no good reason has been provided by the second defendant for the forensic examination to take place in any event. However, it seems to me that that proposition flies in the face of the facts which underpin the very proceedings which the plaintiff has commenced. The unfortunate arrest and temporary incarceration of the plaintiff were significantly associated with an anticipation on the part of the New South Wales Police Service that the plaintiff's Certificate was not genuine or that its provenance, when properly understood, gave no support to the plaintiff's contention that his possession of it was lawful.

24 The admissibility of any report prepared by Mr Westwood proving the results of his examination of the Platinum Certificate is not an issue with which I am presently concerned. It seems to me reasonably arguable that the second defendant has good reason to seek an examination of the document and I consider that it should not be frustrated in its attempt to do so unless very good reasons can be shown.

25 Mr Westwood has offered undertakings regarding the security of the Platinum Certificate to the extent of allowing the plaintiff or his representatives to inspect Mr Westwood's premises and to be present during the course of any examinations that take place. Mr Westwood has agreed to give a series of undertakings which are contained in numbered paragraph 1 on page 2 of a letter dated 4 July 2007 from Allens Arthur Robinson to the plaintiff's solicitor (annexure "E") to Mr Westwood's affidavit.

26 If examination of the document is to take place it seems to me as well that the second defendant should give some appropriate undertaking not only with respect to the question of preventing damage to the Certificate itself but to the ultimate questions of its safety and security. Unless I am mistaken, the second defendant has not yet proffered to the plaintiff or to the Court any compendium of undertakings for consideration by the plaintiff that might satisfy him in this regard in circumstances where the certificate is for all practical purposes uninsurable.

27 I propose to order, on terms, that an examination of the Platinum Certificate by the nominated representative of the second defendant take place.

28 Having regard to all of these matters it seems to me that the most satisfactory resolution of the problem is to vacate the hearing date of this matter listed to commence on 29 October 2007 and to substitute a regime for the further conduct of this matter in the manner provided for by the Short Minutes of Order provided to me in draft by counsel for the second defendant. The alternative, having regard to the inauspicious history of this matter to date, is to commit the parties to a truncated timetable with no guarantee that a further application by one or more of them to vacate the hearing date will not be made and some real prospect that it will. The fact that the plaintiff and the first defendant are presently engaged in a collateral dispute in the Court of Appeal concerning, in this case, the significant issue of the scope of the first defendant's discovery, and that the outcome of that dispute remains uncertain, fortifies me in my conclusion.

29 In these circumstances I make the following orders:-

1. The orders recorded in paragraphs 4 to 9 (inclusive) of the short minutes of order handed up on 29 June 2007 be vacated.

2. Subject to Order 3 hereof, on or before 31 July 2007, the plaintiffs make available at the Manly premises of Forensic Document Services Pty Limited, for non-invasive examinations by Paul Westwood (an expert to be retained on behalf of the second defendant), the document alleged by the plaintiffs to be the "Platinum Certificate" referred to in paragraph 9 of the sixth amended statement of claim, for a period of up to four successive days.

3. Direct that within seven days the second defendant provide to the plaintiff written undertakings by a duly authorised representative of the second defendant which include undertakings in or to the effect of those contained in the letter dated 4 July 2007 from Allens Arthur Robinson to Simon Diab & Associates together with an undertaking that the Platinum Certificate will be returned safely to the care, custody and control of the plaintiff following forensic examination.

4. On or before 31 July 2007, the plaintiffs serve on each of the defendants a copy of the exhibits to:

(a) the statement of Anthony Hamod dated 10 July 2007; and

(b) the statement of Selim Hamod dated 10 July 2007.

(a) the first and second plaintiffs serve on each of the defendants witness statements and expert's reports (including any exhibits and annexures) of all the evidence of lay witnesses and experts that they will seek to adduce in chief in relation to their claims against the first defendant; and

(b) the first plaintiff serve on each of the defendants witness statements and expert's reports of all the evidence of lay witnesses and experts that he will seek to adduce in chief in relation to his claims against the second defendant.

6. The plaintiffs not be permitted to rely on the evidence of any lay or expert witness in chief that is not contained in a witness statement or expert's report served on or before 6 August 2007 without special leave from the trial judge.

(a) the first defendant serve on each other party witness statements and expert's reports (including any exhibits and annexures) of all of the evidence of lay witnesses and experts that it will seek to adduce in chief; and

(b) the second defendant serve on each other party witness statements and expert's reports (including any exhibits and annexures) of all of the evidence of lay witnesses and experts that it will seek to adduce in chief.

(a) the first and second plaintiffs serve on each of the defendants witness statements and expert's reports (including any exhibits and annexures) of any evidence of lay witnesses and experts that they will seek to adduce strictly in reply to the first defendant's evidence; and

(b) the first plaintiff serve on each of the defendants witness statements and expert's reports (including any exhibits and annexures) of any evidence of lay witnesses and experts that he will seek to adduce strictly in reply to the second defendant's evidence.

On or before 31 January 2008 each party (the "providing party") serve on each other separately represented party (the "receiving party"):

(a) a list identifying (by reference to discovery document number) the documents that the providing party proposes to tender at trial and identifying which receiving party each document is sought to be tendered against;

(b) a paginated bundle of documents identified by the providing party pursuant to paragraph (a) above; and

(c) an index to that bundle identifying each document in the bundle and identifying against which receiving party each document is sought to be tendered.

On or before 28 February 2008, each party serve on each other party a list of any objections to the admissibility of evidence.

Grant liberty to the parties to approach the list judge for the allocation of a hearing date with an estimate of seven weeks.

The parties have liberty to apply to me on 48 hours' notice.

Order that the plaintiff pay the costs, if any, of the defendants thrown away or occasioned by reason of the vacation of the hearing date on 29 October 2007.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.