Hamod v State of New South Wales

LEGISLATION CITED : Civil Procedure Act 2005 Evidence Act 1995

A v New South Wales [2007] HCA 10 Commonwealth v Griffiths [2007] NSWCA 370; (2007) 245 ALR 172 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 CASES CITED : Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 R v Beydoun (1990) 22 NSWLR 256 Ringrow Pty Ltd v BP Australia Limited [2003] FCA 933 Roach v Page (No 11) [2003] NSWSC 907 Young v Coupe [2004] NSWSC 546

Anthony Hamod (First Plaintiff) PARTIES : Hamock Investments Pty Ltd (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant)

R T McKeand SC (Plaintiffs) COUNSEL : J E Maconachie QC with 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

20147/2003 Anthony Hamod and Hamock Investments Pty Ltd v State of New South Wales and UBS Australia Limited (No 10)

JUDGMENT 1 HIS HONOUR: On the eleventh day of the hearing it became necessary to consider two separate applications by the plaintiffs to tender certain documents. Section 136 Evidence Act 1995 2 First, on 13 June 2008 the plaintiffs tendered a series of documents that were referred to in the first plaintiff's principal statement in the proceedings. Those documents were admitted by me and became Exhibits AU to AAAK inclusive: see transcript 409-420 inclusive. 3 The second defendant had objected to the tender of those documents. At the point of their admission the second defendant sought in the alternative an order pursuant to s 136 of the Evidence Act 1995 limiting the use that could be made of them. The precise terms of that limitation were described as the "usual document limitation", which was defined to mean that a document so limited should be admitted only as evidence of the contents of a communication in the form of that document between the named author or authors of the document and the addressee or addressees of the document, and not as evidence of the truth of its contents (including not as evidence of any earlier communication to which the document may have referred). Not all of the documents tendered were a communication properly so described but the limitation on the use of the documents sought by the second defendant is not for present purposes relevantly affected. 4 Section 136 evinces a legislative intention to allow evidence, otherwise admissible, to be rejected or its use to be limited if a particular use of the evidence might be unfairly prejudicial to a party: see Roach v Page (No 11) [2003] NSWSC 907. In that case Sperling J, after referring to authority, said at par 34: "[34] Where s60 is involved, a further consideration is introduced. The following observations were made, albeit in obiter, in Quick v Stoland Pty Limited (1998) 87 FCR 371. Branson J said at 377-8:

'It is not necessary in the context of this case to give detailed consideration to the circumstances in which, and the extent to which, evidence of the factual basis of an expert opinion will amount to evidence of the truth of that factual basis: cf Eastman v The Queen (1997) 76 FCR 9 at 78-79. It may be that a different result will follow depending upon the form in which the expert gives evidence of the factual basis of his or her opinion; that is, whether such evidence is given in the form of a representation or, alternatively, in the form of an identification of a hypothetical assumption. If s60 of the Act does operate to give mere form significance in this way, the result cannot be regarded as entirely satisfactory. In cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s60 of the Act by exercising the power vested in it by s136 of the Act'." 5 At pars [37] and [38] his Honour continued as follows: "[37] According to these opinions, where hearsay representations of fact are included in a document as the basis for an expert opinion stated in the document and the facts so represented are contentious, there is a strong case for limiting the use of such representations to their role as assumptions on which the opinion is based. That the representations in the document have become evidence of the facts stated by the fortuitous circumstance that they provide the basis for an expert opinion is seen as an imposition on the opposite party amounting to unfair prejudice.

[38] By parity of reasoning, the same circumspection should apply where a document admitted into evidence as part of a relevant course of events is relied upon as evidence and opinions of the facts stated in it pursuant to ss 60 and 77. That is particularly so where the opposite party cannot test the truth of the representations by cross-examination, or where the basis of the opinion is not adequately disclosed." 6 None of the documents that the plaintiffs sought to tender was an expert opinion, but the principles referred to by his Honour apply by analogy to the present case notwithstanding. 7 In Young v Coupe [2004] NSWSC 546, White J dealt with an application to limit the use of a valuation report provided by an expert in the proceedings. At par [19] his Honour said that, because the report was relevant for a purpose other than proof of the value of a particular property, it was not appropriate to exclude it pursuant to s 135 of the Evidence Act 1995. His Honour said that the question was whether the use that could be made of the report should be limited in accordance with s 136. At par [20] his Honour said, referring to the decision of Hely J in Ringrow Pty Ltd v BP Australia Limited [2003] FCA 933 at par [27], that inability to cross examine ordinarily goes to weight rather than admissibility. White J then set out a series of principles which included that when hearsay or opinion evidence is admissible only because the evidence is relevant for a non-hearsay purpose or is relevant otherwise as opinion evidence (s 60 and s 77), special considerations apply. His Honour cited Sperling J in Roach v Page (No 11) (supra) at par [74] as follows: "[74] Having regard to the terms and context of ss 135, 136 and 137 and the case law to which I have referred, I set out my view of considerations relevant to "unfair prejudice" as follows.

(g) Conversely, where the maker of the representation is available or is not shown to be unavailable and the party tendering the evidence does not call the person, that is a legitimate consideration in favour of a finding of unfair prejudice.

(h) Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party's case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness." 8 The documents that are the subject of the plaintiffs' tender do not fall into a single category or even into a series of discrete categories that can easily be described. On the contrary, each document brings forth separate and different considerations. At the point when I originally admitted the documents into evidence I did so expressly upon the basis that, having regard to the need to manage this hearing as efficiently as possible, it was preferable, although by no means ideal, later to approach the second defendant's application pursuant to s 136 in the same general fashion. 9 Notwithstanding this approach, Mr Speakman of Senior Counsel, who appears for the second defendant, sought to draw my attention to some of the documents in particular in order to emphasise the iniquity that he contended would flow from their unconstrained use in the proceedings for all purposes. In this respect it should be noted that the primary, and possibly the only, issue to which these documents were directed was that of whether or not the Platinum Certificate, which is at the heart of these proceedings, was or was not genuine or valid. The plaintiffs contend that it is and the second defendant contends that it is not. The truth or otherwise of the contents of the documents was therefore at the centre of the present debate. 10 Some examples of the documents are as follows. Exhibit AAT is a letter dated 6 January 1995 from Hamock Investments Pty Ltd to Nicholas Wall, above the signature of the first plaintiff. The subject matter of that letter is a proposed sale of the Platinum Certificate. The letter contains material suggesting that there may have been potential buyers for the certificate, inferentially supporting the proposition that the certificate is valid. The letter is inherently self-serving. It contains other representations that are arguably incapable of verification. 11 Exhibit AAO is a copy of a page from the Australian Financial Review on 20 June 2006. It contains what is described an "expression of interest" with respect to the sale of the Platinum Certificate. The document contains the following statement, clearly authorised by the first plaintiff: "I am the lawful holder of a Certificate of deposit of platinum bullion issued by the Union Bank of Switzerland on 27 October 1978, valued at today's prices for (sic) approx 170 billions USD." 12 The plaintiffs' attempt to rely upon that statement by the first plaintiff, as evidence of its truth, is a matter that the second defendant contends is prejudicial if admitted as evidence without limitation. 13 Exhibit AAAE is a document of some 213 pages. It is not possible conveniently or accurately to summarise its contents in any meaningful way. Pages 133 and following of that document, however, are portion of a statement by an unnamed person apparently given to the Australian Federal Police in the course of an interview on 20 September 1995 in Vancouver, Canada. The prejudice stemming from a document such as this by an unnamed deponent, if admitted into evidence without limitation, needs only to be stated to be understood. 14 Pages 19-21 of the same exhibit are a letter from the first plaintiff to Federal Agent Bishop of the Australian Federal Police, which contains, among other things, the following statement: "I have recently received information and documents from overseas sources that confirmed that UBS AG did in fact breached (sic) the Trade Practices Act 1974 of Australia and did in fact commit criminal torts here in Australia including conspiracy to injury and fraud (sic) me and fraud (sic) Hamock Investments Pty Ltd from substantial amount of money." 15 That letter contains further similar statements. The second defendant contends that it would be prejudiced if such a letter were received in evidence without the limitation for which it contends. 16 Exhibit AX is a document of 79 pages that also defies convenient or accurate description. Page one of that exhibit is a letter dated 11 March 1994 from Hamod Holdings Pty Ltd to Michael Brendan O'Dowd. That letter commences with an opening paragraph that includes the words "I wish to confirm that the Buyer's mandate had authenticated the Platinum Certificate". The letter is signed by the first plaintiff. It is unnecessary to elaborate upon the obvious prejudice that the second defendant says flows from the unlimited reception into evidence of such a document. 17 It was urged upon me by the second defendant that if my original decision to admit the documents under consideration into evidence was made having regard to the need to manage the present hearing efficiently, my adjudication of its application for a limitation upon that evidence pursuant to s 136 ought also to be informed by a similar approach. 18 Mr McKeand of Senior Counsel, who since 2.00pm on 10 June 2008 has appeared for the plaintiffs, argued that what he described as a "blanket approach" was not appropriate. Mr McKeand contended that notwithstanding the approach taken by me to the reception of the documents that he tendered, limiting the use of the documents pursuant to s 136 should be dealt with on what amounted to a case-by-case basis. Whereas such an approach undoubtedly conforms to principle, it seems to me that the documents tendered by the plaintiffs are so offensive to the notion that they should be admitted as evidence of the truth of their contents that a general approach in this case is warranted. In other words, special considerations apply. This is particularly so in my opinion having regard to the overriding principle described in s 56 of the Civil Procedure Act 2005. 19 Alternatively, Mr McKeand contended that the documents were business records falling within s 69(2) of the Evidence Act 1995 and that as such should be admitted as exceptions to the hearsay rule. It will be immediately apparent that such a submission itself draws upon the need to reply upon generalities or what Mr McKeand earlier described as a "blanket approach" to make it good. However, even assuming that the documents in question form part of the records belonging to or kept by a person or organisation in the course of, or for the purposes of, a business, it is not possible with sufficient confidence to generalise, having regard to the wildly variable provenance of all of the documents, about whether or not representations contained in them were made by persons who had or might reasonably be supposed to have had personal knowledge of the facts asserted or on the basis of information supplied by a person who did. 20 The second defendant also contends that the plaintiffs ought not to be entitled to the benefit of s 69(2) because it does not apply to representations "prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding": s 69(3). In aid of this submission the second defendant relied upon the fact that s 69(3)(b) extended as well to a representation "made in connection with an investigation relating or leading to a criminal proceeding". Having regard to the fact that the criminal proceedings against the first plaintiff spanned the period from 20 January 1995 until April 1998, and that the present proceedings have themselves been on foot since 2000, much of the documentation sought to be tendered would be excluded under the relevant subsection. Detailed submissions permitting me to make an accurate appraisal of this argument were not provided. 21 In my opinion, a limitation upon the use of the documents in the terms sought by the second defendant is appropriate. Accordingly, what I have earlier described as the "usual document limitation" should apply to Exhibits AT to AAAK inclusive. Transcript of Local Court proceedings 22 Secondly, the plaintiffs sought to tender the whole of the transcript of the proceedings in the Local Court before Magistrate Horler. That transcript was Exhibit AH146 to the first plaintiff's principal statement in the proceedings and I am informed that it extends to four lever arch volumes of material. Mr Maconachie of Queen's Counsel who, with Mr Hutchings of counsel, appears for the first defendant, opposed the admission of that material upon the basis that it is irrelevant, is hearsay, and upon the further basis that it infringes principles of witness immunity. 23 One of the plaintiffs' causes of action against the first defendant is malicious prosecution. It was principally in the context of that cause of action that the contest about the application to tender the transcript was heard. The elements of that tort have been recently described in A v New South Wales [2007] HCA 10; at pars [54], [57]-[59] as follows: "[54] It is on this basis that the tort has hitherto been understood as requiring proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). The two requirements meet the two different kinds of case posited in Johnstone v Sutton - maliciously taking up a prosecution "for real guilt", and proceeding upon apparent guilt from circumstances which the prosecutor "really believes". That is, the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort. A conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution."

"[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor.

[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.

[59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." 24 It is in my opinion critical for present purposes to observe that at the point of being asked to rule upon the admissibility of the four volumes of Local Court transcript, no party sought to direct my attention to it in any specific or detailed way. Submissions both in support of and in opposition to the tender of that transcript have proceeded upon the basis that a general understanding of the principles circumscribing the causes of action upon which the plaintiffs rely, in aid of the proof of which the transcript is said to be relevant, is sufficient for present purposes. I hasten as well to observe that I am not critical of that approach and indeed I recognise it to be a function of a genuine concern by all parties to this litigation that an efficient management of the proceedings necessarily commands the need for some compromises. 25 The first defendant does not contend that the transcript of the proceedings in the Local Court is in all circumstances and for all purposes inadmissible as a matter of principle having regard to the elements of the causes of action pleaded by the plaintiffs. Indeed, examples were discussed during argument that patently recognised circumstances where portion at least of the transcript may be particularly pertinent to an allegation that a prosecutor maintained a prosecution without reasonable and probable cause. Theoretically at least, therefore, the plaintiffs may seek to rely upon what transpired before the learned magistrate to demonstrate the existence of circumstances that ought to have led the prosecutor immediately to have sought to terminate the proceedings. I should also hasten to note that the plaintiffs do not limit the utility of the transcript only to such hypothetical circumstances. Indeed, Mr McKeand emphasised that evidence given during the course of the proceedings may well illuminate the prosecutor's anterior decision to commence the prosecution in the first place. 26 The first defendant emphasised, by reference to the sixth amended statement of claim, that the plaintiffs have never sought to plead as an element of any of their causes of action facts referable to or stemming from anything that took place during the course of the Local Court proceedings. The first defendant says that nothing contained in particulars provided by the plaintiffs, that arguably hints at such a reliance, can be used by the plaintiffs to support any argument that their cause of action is in fact based, or relies, upon any circumstance that can be traced to those proceedings. 27 Mr McKeand has sought to argue by analogy with the practice commonly adopted in commercial litigation in this Court that the transcript should for present purposes be treated as a bundle of documents admitted into evidence but to which I should only have regard if or when the plaintiffs are able to demonstrate that some portion or portions of it are relevant to the proof of a particular fact in issue. As beguiling as that submission may at first sight appear, it does not seem to me to be an appropriate course to adopt. Although I have not yet had the benefit of examining any portion of the transcript, it seems to me, unaided by that benefit, to be highly likely if not certain that not all of it, and probably not even most of it, will assist the plaintiffs in making out their pleaded case. Resorting once again to the overriding principle that this litigation should be conducted, justly, quickly and cheaply, it seems to me that the only proper and reasonable approach to the plaintiffs' application to tender this transcript is to reject the tender of it as a single exhibit at this stage, but to acknowledge that such a rejection should not operate as a constraint upon the plaintiffs from making such further application or applications to tender and to rely upon such portions of it as are demonstrably, or at least arguably, relevant to a particular issue or issues in the proceedings. 28 The first defendant also argued that the transcript was inadmissible for use in these proceedings upon the basis of witness immunity. In R v Beydoun (1990) 22 NSWLR 256 the Court stated the rule at 259 as follows: "The rule as generally stated is that no civil action lies in respect of statements made in the course of and with respect to judicial proceedings. The authorities supporting that rule, so far as it precludes an action for defamation, were described as "clear, uniform and conclusive" and the law as "settled" in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263, 265. So far as statements made by witnesses are concerned, such law was said to be "settled" in the appeal from that decision ( Dawkins v Lord Rokeby (1875) LR 7 HL 744 at 754), and as "now quite certain" in Seanam v Netherclift (1876) LR 1 CPD 540 at 545, and as settled and undoubted, and the contrary unarguable, in Watson v M'Ewan [1905] AC 480 at 486. In the last- mentioned case (at 489), the absolute immunity of witnesses was extended to include statements made by them to a party's solicitor when their proofs of evidence are being taken. When dismissing a civil action claiming damages for false evidence given in other litigation, Lord Goddard CJ said that it was "perfectly clear and beyond peradventure" that such an action is unavailable: Hargreaves v Bretherton [1959] 1 QB 45 at 51: see also Roy v Prior [1971] AC 470 at 477." 29 The Court went on to say the following at 260: "Civil actions such as malicious prosecution and abuse of process are not precluded by the rule, however, because they are based not directly upon statements made in the course of the judicial proceedings, but rather upon the instigation of the proceedings themselves (or upon their continuation), and notwithstanding that the plaintiff may seek to support his case by proving the falsity of statements made in those proceedings which form the basis of such a claim: Revis v Smith (at 141, 142) 1320; Kennedy v Hilliard (at 201); Fitzjohn v Mackinder (1861) 9 CBNS 505 at 533; 142 ER 199 at 210; Dunshea v Ryan (1901) 1 SR (NSW) 163 at 166; Coleman v Buckingham's Ltd [1963] SR (NSW) 171 at 180-181; 80 WN (NSW) 593 at 600; Roy v Prior (at 477-478). The availability of such actions appears to me to accord satisfactorily with the twofold rationale of the rule which the cases have identified.

It follows, in my view, that it is correct to say that no civil action lies in respect of statements made in the course of and with respect to judicial proceedings, provided that that proposition is understood as being limited to those actions which are based directly upon the making of such statements. The proposition does not exclude other civil actions merely because the truth of such statements (or the motive with which they are made) may be in issue in those other actions." 30 In this context I have also been referred, and have had regard, to Commonwealth v Griffiths [2007] NSWCA 370; (2007) 245 ALR 172 at pars [42]-[49] inclusive and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at par [39]. 31 These statements are relevant both to a consideration of the plaintiffs' arguments that the immunity should not apply and to the first defendant's argument that it should. This is because in the present proceedings the plaintiff has not demonstrated or identified a statement or statements made in the course of the Local Court proceedings that are said to form the basis of the claims pleaded as malicious prosecution. Conversely, but for the same reason, the first defendant's purported reliance upon the witness immunity rule does not arise until such time as the plaintiffs nominate or identify statements alleged by them to have been made in the course of the Local Court proceedings which are said to form the basis of the claim. Even if the plaintiffs' case for malicious prosecution is said to be based not directly upon statements made in the course of judicial proceedings but rather upon the instigation or continuation of the proceedings themselves, it seems to me that the necessary starting point in an application such as the present must be the identification by the plaintiffs of the statements made in the proceedings that form the basis of the claim which the plaintiffs will seek to demonstrate were false. Until that occurs it is not possible to consider the first defendant's reliance upon witness immunity in a meaningful context. The fact that the first defendant has not pleaded a reliance upon it - a point to which the plaintiffs directed my attention - would appear to be an emphatic enunciation of that proposition. 32 I recognise that in Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 at 590 Toohey and McHugh JJ observed that the immunity has been held not to apply to civil actions for malicious prosecution or abuse of process as these actions are based not on statements made in the course of judicial proceedings but on the instigation of the proceedings themselves. The plaintiffs sought to rely upon that statement as one disposing of the first defendant's attempt to rely upon witness immunity as a ground for opposing the tender of the transcript. However, that reliance by the plaintiffs is clearly ill founded to the extent that, on my understanding of the basis of the tender, the plaintiffs wish to direct particular attention to the content of statements made in the course of judicial proceedings, not merely as evidence of, or as something that occurred following, the instigation of the proceedings themselves. Limited to a cause of action based solely on the instigation of the proceedings, without regard to the statements made in the course of the proceedings, the proposed tender of the transcript in toto arguably lacks any obvious utility. Put simply, the passage from Jamieson relied upon does not support the plaintiffs' proposed tender of the transcript, having regard to their avowed intention, in some as yet unexplained way, to rely upon the content of the statements made by witnesses in the course of the Local Court proceedings. 33 Finally, in a way that appears to be self evident, it is not possible for me to give any proper consideration to the first defendant's hearsay objection without scrutinising the actual material sought to be tendered in some small detail at least. This should abide any such application by the plaintiffs to tender specific portions of the transcript as they may make. 34 Accordingly I reject at this stage the tender of the whole of the transcript of the proceedings before Magistrate Horler in the Local Court.

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.