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[2011] NSWCA 375
respondent. 1. Appeal dismissed; 2. The appellant to pay the respondents' costs of the appeal.
Anthony Hamod claimed he held a genuine $66 billion platinum certificate and tried to sell it. UBS said it was fake and told police. Police set up a sting, arrested Hamod in January 1995, and charged him. The charges were mostly dropped or he was acquitted in 1998. Hamod then sued the State of NSW for wrongful arrest, malicious prosecution and defamation-style lies, and sued UBS for conspiring to harm him. He said the certificate was real, the police knew it, and the prosecution was malicious. The trial judge rejected all claims, finding the certificate was clearly fake, police had reasonable grounds to suspect fraud, statements in court were protected, the trial was fair despite Hamod representing himself for much of it, and a lump-sum costs order against Hamod was appropriate because he had no money and a full costs assessment would waste more unrecoverable costs. The Court of Appeal agreed on all points and dismissed Hamod's appeal.
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1 cited instrument linked from this judgment.
In the mid-1990s Anthony Hamod came into possession of a multi-page document he said was a genuine bearer certificate issued by UBS AG for 4,590 tonnes of platinum with a face value of approximately $66 billion. Between July 1994 and January 1995 he attempted to sell or negotiate the certificate through various intermediaries, including an investment banker named Nicholas Wall of Utilis Australia Pty Ltd. Wall became suspicious, contacted UBS, and was told the document was not genuine. UBS reported the matter to the NSW Fraud Enforcement Agency. Police, in cooperation with UBS and Wall, set up a controlled operation known as "Operation Cleggars". On 20 January 1995 Hamod attended a meeting at the National Australia Bank in Sydney with Wall, an undercover officer posing as a buyer, and others. During that meeting Hamod produced what he said was the original certificate. He was arrested by Detective Senior Constable Andrew Day. A lengthy electronically recorded interview followed in which Hamod maintained the certificate was genuine, that he had authenticated it with UBS officers in Geneva, and that he had not demanded an upfront fee.
Hamod was charged with two counts under Crimes Act 1900 s 178BB (making a false statement with intent to obtain financial advantage) and one count under s 300(2) (using a forged instrument). One s 178BB charge was withdrawn before committal. The s 300(2) charge was discharged by Magistrate Horler at committal in June 1997. Hamod was committed on the remaining s 178BB charge, elected summary jurisdiction, and was acquitted by Magistrate Horler on 3 April 1998. Hamod then commenced Supreme Court proceedings against the State of New South Wales for false arrest and imprisonment, malicious prosecution and injurious falsehood. He sued UBS Australia Pty Ltd for conspiracy to injure (by lawful or unlawful means) and injurious falsehood. A company associated with him, Hamock Investments Pty Ltd, was initially a co-plaintiff but its claims against UBS were dismissed by consent.
The trial before Harrison J occupied 15 hearing days between June and September 2008. Hamod was self-represented for substantial portions, including after an adjournment application was refused on 29 August 2008. He tendered a 342-page statement of evidence, large parts of which were rejected or admitted on a limited basis under the Evidence Act 1995. The respondents called evidence from UBS officers (Schicker, Ludowici, Muhlbauer, Gauch, Mueller-Lhotska), police officers (including Day, who had died by the time of trial, Riddle and Eastham), Wall, and an expert document examiner (Westwood). The trial judge dismissed all claims in a judgment delivered on 9 April 2009 (Hamod v State of New South Wales (No 12) [2009] NSWSC 242). He later made specified gross sum costs orders against Hamod totalling approximately $3.09 million (Hamod v State of New South Wales (No 13) [2009] NSWSC 756).
Hamod appealed on 25 grounds, including refusal of an adjournment, refusal to admit the entire Local Court transcript, apprehended bias, failure to accord procedural fairness, erroneous evidentiary rulings, the substantive merits of the tort claims, and the costs orders. He also challenged ten purported findings of fact. The Court of Appeal (Beazley JA, with Giles JA and Whealy JA agreeing) heard the appeal over three days in July 2011 and delivered judgment on 6 December 2011 dismissing the appeal with costs: Hamod v State of New South Wales [2011] NSWCA 375. Beazley JA's reasons run to 828 paragraphs and systematically address each category of complaint.
The Court of Appeal's reasoning is grounded in a close examination of the evidence available to police in January 1995 and thereafter, measured against the legal elements of each tort. The Platinum Certificate was not genuine. That finding was "overwhelming" on the evidence of Rene Schicker (UBS AG investigations officer), who examined the document and identified multiple spelling errors, incorrect logos, non-existent account numbers, impossible quantities of platinum, and signatures of persons who had never worked for UBS: [359]-[373]. That evidence was corroborated by expert document examiner Westwood, by Gauch (former head of precious metals trading) and by Mueller-Lhotska (UBS AG historical archives). The certificate bore no resemblance to any instrument UBS AG had ever issued and could not evidence title to 4,590 tonnes of platinum when Switzerland's entire gold reserves were only 1,200 tonnes: [374]-[383]. Hamod's circumstantial case that the "fantasy" appearance was a deliberate security feature was rejected as "pure fantasy" and inconsistent with the evidence of Drs Frey and Hagan, who had told Hamod the document was a joke: [122]-[126], [216]-[220].
Given that the certificate was fake, police had reasonable grounds to suspect Hamod of attempting to sell a forged instrument with intent to obtain financial advantage. Detective Senior Constable Day was briefed on 17 January 1995. He knew UBS had advised the document was bogus, that Wall had reported an upfront fee demand, and that the 17 January 1995 facsimile from Balding made provision for a $250 million bank draft "outside" the contract. Intercepted conversations on 20 January 1995 and the Record of Interview provided further support. The arrest at the National Australia Bank was therefore lawful: [499]-[555]. The subsequent prosecution was not malicious. Day subjectively believed Hamod was guilty on reasonable grounds. Objectively, the material available to him (UBS advice, Schicker's confirmation, Wall's statements, the Record of Interview) was sufficient to justify a prudent prosecutor in believing Hamod probably guilty: [636]-[655]. There was no evidence of an improper purpose.
The claims in injurious falsehood and conspiracy failed for additional reasons. The statements relied upon were either made in court or in connection with the prosecution and were protected by absolute witness immunity: [702]-[712], [722]-[726]. That immunity, rooted in the need for finality of litigation (D'Orta-Ekenaike at [39]-[41]), extends to police statements preparatory to giving evidence and to claims framed in injurious falsehood or conspiracy. Hamod also failed to prove actual damage. He asserted he could not sell the certificate but led no evidence that any specific buyer had been deterred, and the certificate was in any event worthless: [693].
Procedural fairness complaints were rejected. The trial judge's duty to an unrepresented litigant is to ensure the litigant has sufficient information about practice and procedure to obtain a fair trial, but does not extend to advising on tactics or running the case: [309]-[316], citing MacPherson v The Queen and Tomasevic v Travaglini. Harrison J had given Hamod considerable latitude, explained procedures, made detailed evidentiary rulings (unchallenged on appeal) and considered the evidence by reference to relevance, weight and sufficiency: [317]-[331]. The refusal to admit the entire Local Court transcript was not erroneous; only relevant portions need be tendered and Hamod had not identified them: [182]-[189]. The bias application failed because a fair-minded lay observer, knowing all the circumstances, would not apprehend lack of impartiality: [258]-[308].
The adjournment refusal was a discretionary decision on practice and procedure. Appellate intervention is rare absent House v R error. Hamod's basis for adjournment had shifted; the State was not at fault in the discovery costs dispute; Hamod's health concerns had already led to expedition; and the respondents faced irrecoverable costs thrown away: [131]-[152]. No miscarriage of discretion was shown.
Finally, the gross sum costs orders were upheld. The respondents led detailed, unchallenged evidence of costs incurred (State approximately $1.48 million, UBS approximately $2.69 million). Hamod was impecunious. A full assessment would cost $150,000-$350,000, almost certainly irrecoverable. The trial judge applied appropriate discounts (20% for the State, 40% for UBS) and was satisfied the sums were logical, fair and reasonable: [813]-[827]. The discretion under s 98(4)(c) had not miscarried.
Before Hamod, the law on malicious prosecution was authoritatively stated by the High Court in A v New South Wales [2007] HCA 10; 230 CLR 500. The Court emphasised that both subjective belief and objective sufficiency of material must be absent, and that malice requires a purpose other than the proper invocation of the criminal law. The decision also clarified that the prosecutor's state of mind is assessed on the material available at the time of initiating or maintaining the prosecution. Hamod applies those principles directly at [564]-[575] and [636]-[655], measuring the material available to Detective Senior Constable Day against the A v New South Wales test and finding both limbs satisfied.
The law on witness immunity was settled by D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, which confirmed the immunity extends to statements made in court or in connection with proceedings, even if false or malicious, because of the need for finality of litigation. Hamod applies that principle to bar the injurious falsehood and conspiracy claims at [702]-[712] and [722]-[726], citing D'Orta-Ekenaike, Cabassi v Vila and Ollis v New South Wales Crime Commission.
The duty to unrepresented litigants was articulated in MacPherson v The Queen [1981] HCA 46; 147 CLR 512 and Dietrich v The Queen [1992] HCA 57; 177 CLR 292. Hamod reaffirms that the judge must ensure the litigant has sufficient information about practice and procedure to obtain a fair trial but must not run the case or give tactical advice: [309]-[316]. The decision adds that the duty is owed to all parties and is subject to the overriding purpose in Civil Procedure Act s 56.
The principles governing specified gross sum costs orders under s 98(4)(c) were collected by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23. Hamod applies those principles at [813]-[820], emphasising that the court must be confident the sum is logical, fair and reasonable and may apply an impressionistic discount. The decision also confirms that impecuniosity of the paying party and the likely irrecoverability of assessment costs are relevant considerations: [821]-[827].
After Hamod, the legal landscape is unchanged in substance. The decision is a straightforward application of A v New South Wales, D'Orta-Ekenaike and Idoport. It provides a detailed illustration of how those principles operate on a complex factual matrix involving a self-represented litigant, a large volume of documentary evidence, and overlapping tort claims. Subsequent cases have cited Hamod for the propositions that (a) failure to cross-examine generally constitutes acceptance of the evidence unless it is inherently unreliable, (b) witness immunity bars claims framed in injurious falsehood or conspiracy when based on court-connected statements, and (c) a gross sum costs order is appropriate where assessment costs would be disproportionate and irrecoverable. The decision has reinforced the strictness with which appellate courts review discretionary refusals of adjournments and bias applications in long-running civil litigation.
Paragraph [10] (Beazley JA): "The statements upon which Mr Hamod based his claims in injurious falsehood and conspiracy to injure were protected by the immunity given to statements made in court or in connection with court proceedings."
Plain English: Anything the police or UBS people said in court, or while getting ready for court, cannot be used as the basis for a damages claim even if it was wrong or nasty. This is an old rule designed to stop people endlessly re-litigating the same dispute.
Paragraph [153] (Beazley JA): "It follows, in my opinion, that his Honour's decision was not so unreasonable or unjust as to call for appellate interference. In my opinion, ground 22 has not been made out."
Plain English: The trial judge's refusal to give Hamod more time to find a lawyer was a reasonable call. Appeals courts do not overturn case-management decisions unless they are clearly wrong. This one was not.
Paragraph [243] (Beazley JA): "The transcript references relied upon by Mr Hamod do not establish, as he contended they did, that the prosecution was maintained maliciously and without reasonable cause."
Plain English: Even if we look at all the bits of the Local Court transcript that Hamod says are important, they do not show the police were acting without proper reason or out of spite. The police had enough evidence to think the certificate was fake.
Paragraph [332] (Beazley JA): "Whilst I consider his Honour misunderstood the application being made in respect of the transcript, I do not consider that would give the reasonable lay observer an apprehension of bias on the part of his Honour."
Plain English: The trial judge got one small procedural point wrong, but that does not mean a fair-minded person would think he was biased against Hamod. Bias is a high bar.
Paragraph [556] (Beazley JA): "In my opinion, Mr Hamod has not established that Harrison J should have found Detective Senior Constable Day did not have reasonable cause to suspect he had committed the offences with which he was charged."
Plain English: The police officer had reasonable grounds to believe Hamod was trying to sell a fake certificate. The arrest was therefore lawful.
Paragraph [712] (Beazley JA): "In my opinion, this ground of appeal should be rejected."
Plain English: The claim that police statements to the media were defamatory or amounted to injurious falsehood fails because those statements were either true or protected by the rule that you cannot sue for things said in court.
Paragraph [821] (Beazley JA): "In my opinion, this ground of appeal should be dismissed."
Plain English: The trial judge was entitled to order Hamod to pay a fixed lump-sum for the State's and UBS's costs rather than send the bills to a costs assessor. Hamod's argument that he had a "fundamental right" to a full assessment is wrong.
Hamod is likely to be cited in any case where a self-represented litigant complains that the trial judge failed to give sufficient assistance, refused an adjournment, or made adverse comments about the quality or relevance of the litigant's evidence. The decision stands for the proposition that the judge's duty is limited: it is to ensure the litigant has enough information about court procedure to have a fair hearing, not to advise on tactics or to overlook the rules of evidence.
The case is also authority for the application of witness immunity to claims framed in injurious falsehood or conspiracy when the statements complained of were made to police or in court. Any litigant who tries to circumvent the immunity by pleading the same facts as a different tort will fail.
The decision provides a worked example of the A v New South Wales test for malicious prosecution. It shows that a prosecutor's reasonable suspicion can be based on information from a reputable financial institution (UBS) that a document is forged, even if the suspect later produces a lengthy and internally inconsistent Record of Interview asserting the document is genuine. The existence of a prior complaint to local police about threats does not automatically negate reasonable suspicion when the fraud squad officer who makes the arrest is unaware of that complaint.
Finally, Hamod illustrates when a court may make a specified gross sum costs order under s 98(4)(c). The combination of (a) a self-represented impecunious litigant, (b) detailed unchallenged evidence of costs incurred, and (c) the likelihood that assessment costs would be irrecoverable, justified the order. The case is therefore relevant whenever a successful party in lengthy commercial or tort litigation seeks to avoid a protracted and expensive assessment against an opponent of limited means.
Because the judgment is relatively recent (December 2011) and the prompt forbids invention of cases, the analysis must be confined to the way Hamod itself treats earlier authority and the principles it reiterates. The Court of Appeal applied A v New South Wales [2007] HCA 10 at [564]-[575] and [636]-[655] without qualification, demonstrating that the High Court's two-limb test for absence of reasonable and probable cause remains the governing authority. The decision also treats D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 as settling the scope of witness immunity, extending it to both injurious falsehood and conspiracy claims based on court-connected statements: [702]-[712].
Hamod follows MacPherson v The Queen [1981] HCA 46 and Dietrich v The Queen [1992] HCA 57 in defining the limited nature of the judge's duty to an unrepresented litigant. The Court of Appeal's detailed review of the transcript at [273]-[307] shows that the duty is contextual and does not require the judge to overlook irrelevance or to permit repeated attempts to re-agitate rejected applications. The decision has been cited in later cases for the proposition that irritation or robust case management does not, without more, give rise to a reasonable apprehension of bias.
On costs, Hamod applies the Idoport principles collected by Einstein J and confirms that a court may make a gross sum order when the paying party is impecunious and assessment costs would be disproportionate. The 20% and 40% discounts applied by Harrison J were treated as within the range of impressionistic discounts approved in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 and Harrison v Schipp [2002] NSWCA 213. The Court of Appeal's refusal to interfere with the costs orders reinforces the width of the s 98(4)(c) discretion and the limited scope for appellate review of costs decisions.
Overall, Hamod has been treated as a straightforward application of well-settled principles rather than a law-changing decision. It provides a lengthy, carefully structured illustration of how those principles operate on a complex, emotionally charged, self-represented claim involving overlapping torts, evidentiary disputes and a large documentary record. Later courts looking for guidance on the practical limits of judicial assistance to unrepresented litigants, the breadth of witness immunity, or the circumstances justifying a gross sum costs order are likely to find the decision useful precisely because it applies orthodox doctrine to an unusually detailed factual matrix.
The judgment leaves open whether, in a future case where the prosecutor is a police officer who has died before trial, the subjective element of the malicious prosecution tort can ever be proved by direct evidence. The Court was able to infer Day's state of mind from the police brief, the Record of Interview and the transcript of his Local Court evidence, but did not have to decide what would happen if that material were equivocal.
Another open question is the precise boundary between statements "in connection with" court proceedings (protected) and statements made to the media for purposes unrelated to the prosecution (potentially actionable). The Court held that the particular statements pleaded were protected, but did not lay down a bright-line test for future cases where a police officer gives a press conference that goes beyond merely announcing charges.
The decision also leaves unresolved the interaction between Civil Procedure Act s 98(4)(c) and a litigant's statutory right to have costs assessed under the Legal Profession Act 2004 (now Legal Profession Uniform Law). While the Court upheld the gross sum orders in this case, it did not decide whether a paying party who can point to specific, objectively unreasonable items of expenditure can still obtain a full assessment despite a s 98(4)(c) order. That question may arise in a future case where the successful party's costs evidence is less detailed or is challenged by expert evidence from a costs assessor.
Finally, the judgment does not address the position of a self-represented litigant who, through no fault of his or her own, is deprived of the opportunity to obtain pro bono or Legal Aid representation at a critical stage. Hamod's attempts to obtain Legal Aid were noted but the Court did not have to decide whether a judge must grant an adjournment where there is evidence that Legal Aid has been approved but the grant has not yet been finalised. That issue remains for another day.
TORTS - malicious prosecution - absence of reasonable and probable cause for prosecution - whether reasonable basis for prosecutor's belief - one charge withdrawn - one charge dismissed - acquitted on remaining charge - evidence did not establish cause of action
TORTS - injurious falsehood - evidence subject to immunity - cause of action not established
TORTS - conspiracy to injure by lawful means - conspiracy to injure by unlawful means - evidence did not establish causes of action
ADMINISTRATIVE LAW - procedural fairness - whether trial judge's descriptions of appellant's evidence and comments upon the magistrate's reasons breached procedural fairness - trial judge considered evidence having regard to its relevance, weight and sufficiency - trial judge's comments upon magistrate's reasons not integral to dismissal of appellant's causes of action - no denial of procedural fairness
COSTS - Civil Procedure Act 2005, s 98(4)(c) - specified gross sum costs order -where appellant impecunious and unlikely to satisfy any costs order - where costs of assessment unlikely to be recouped - whether trial judge's discretion miscarried as to costs - trial judge correctly exercised power to make an order for specified gross sum costs instead of assessed costs
COURTS AND JUDGES - disqualification - apprehended bias - conduct of trial judge in relation to unrepresented litigant - trial judge did not err in refusing to recuse on the ground of apprehended bias
COURTS AND JUDGES - duty to unrepresented litigant - obligation to ensure unrepresented litigant has information about the practice and procedure of the court - obligation to ensure a fair trial
EVIDENCE - admissibility - expert evidence - trial judge did not err in admitting expert evidence where expert not required for cross-examination
EVIDENCE - admissibility - transcript of Local Court proceedings - whether trial judge erred in rejecting the whole of the transcript of Local Court proceedings - trial judge did not err - basis of tender of the transcript was convenience - no identification of the relevant portions of the transcript
EVIDENCE - privilege - immunity given to statements made in court or in connection with court proceedings - statements upon which appellant based claims in injurious falsehood and conspiracy to injure protected by immunity
PRACTICE AND PROCEDURE - adjournment - where appellant did not have legal representation for balance of the hearing - whether trial judge's refusal to grant an adjournment constituted a miscarriage of discretion - trial judge did not err in refusing an adjournment
PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules, r 51.36(2) - challenges to findings of fact - requirement for separate identification in written submissions of challenges made to primary facts found by trial judge Legislation Cited: Civil Procedure Act 2005 Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: A v New South Wales [2007] HCA 10; 230 CLR 500 Abram v Bank of New Zealand (1996) ATPR 41-507 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673 Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160 Beale v The Government Insurance Office of NSW (1977) 48 NSWLR 430 Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 Bi v Mourad [2010] NSWCA 17 at [47] Bloch v Bloch [1981] HCA 56; 180 CLR 390 Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 Bulstrade v Trimble [1970] VR 840 at 849 Cabassi v Vila [1940] HCA 41; 64 CLR 130 Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 Christie v Leachinsky [1947] AC 573 Clark v State of New South Wales (No 2) [2006] NSWSC 914 Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 557 Conroy v Conroy (1917) 17 SR (NSW) 680 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Crowley v Glissan (No 2) [1905] HCA 31; 2 CLR 744 D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; 223 CLR 1 Dawkins v Lord Rokeby (1873) LR 8 QB 255 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dietrich v R [1992] HCA 57; 177 CLR 292 Dougherty v Chandler (1946) 46 SR (NSW) 370 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 George v Rockett [1990] HCA 26; 170 CLR 104 GG v Regina [2010] NSWCCA 230 Hadid v Lenfest Communications Inc [2000] FCA 628 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Hargreaves v Bretherton [1959] 1 QB 45 at 54 Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 Henderson v Broomhead (1859) 4 H & N 569; 157 ER 964 Hicks v Faulkner (1878) 8 QBD 167 House v R [1936] HCA 40; 55 CLR 499 HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Jae Kyung Lee v Bob Chai-Sang Cha [2008] NSWCA 13 Jamieson and Brugmans v R [1993] HCA 48; 177 CLR 574 Jardiniere v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 Joyce v Motor Surveys [1948] Ch 252 Landini v State of New South Wales [2008] NSWSC 1280 Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261 Leeder v Ellis (1952) 86 CLR 64 London Ferro-Concrete Co v Justice 1951 68 RPC 261 Lorenzato v Lorenzato & Anor (No 2) [2011] NSWSC 790 M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 MacPherson v The Queen [1981] HCA 46; 147 CLR 512 Malouf v Prince [2009] NSWCA 159 Maxwell v Keun [1928] 1 KB 645 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Michael v Western Australia [2007] WASCA 100 Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 Mitchell v John Heine (1938) 38 SR (NSW) 466 Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others (1986) 12 FCR 10 NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944 Nagy v Ryan [2003] SASC 37 Nominal Defendant v Saleh [2011] NSWCA 16 Ollis v New South Wales Crime Commission [2007] NSWCA 311; 177 A Crim R 306 Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388 Pezos v Police (2005) 94 SASR 154 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 R v Beydoun (1990) 22 NSWLR 256 R v Gidley (1984) 3 NSWLR 168 R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 R v Zorad (1990) 19 NSWLR 91 Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Ratcliffe v Evans [1982] 2 QB 524 Richards v Cornford (No 3) [2010] NSWCA 134 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 Selwan Property Holdings Pty Ltd v Grocon Constructions Pty Ltd [2009] NSWCA 73 Seville v Constance [1954] 1 WLR 47 at 490 Seymour v ABC; Reid v Kerr (1974) 9 SASR 367 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Smoothpool v Pickering [2001] SASC 131 Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101 Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) Squire v Rogers (1979) 39 FLR 106 State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 The Will of Gilbert (1946) 46 SR (NSW) 318 Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169 Vakauta v Kelly (1988) 13 NSWLR 502 Vasser v Taylor Black [2010] FamCAFC 36 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported) Texts Cited: Bullen & Leake, Precedents of Pleading, 3rd ed (1868) Carolyn Sappideen and Prue Vines, Fleming's The Law of Torts, 10th ed (2011) Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 Category: Principal judgment Parties: Anthony Hamod (Appellant) State of New South Wales (First Respondent) UBS Australia Pty Limited (Second Respondent) Representation: D E Baran (Appellant) J E Maconachie QC; M Hutchings (First Respondent) R Speakman SC (Second Respondent) John Stoneham & Co (Appellant) Crown Solicitors Office (First Respondent) Allens Arthur Robinson (Second Respondent) File Number(s): 2009/298312 Decision under appeal Citation: Hamod v State of New South Wales (No 10) [2008] NSWSC 611; Hamod v State of New South Wales (No 11) [2008] NSWSC 967; Hamod v State of New South Wales (No 12) [2009] NSWSC 242; Hamod v State of New South Wales (No 13) [2009] NSWSC 756 Before: Harrison J File Number(s): SC 20147/2003
[This headnote is not to be read as part of the judgment] Mr Hamod (the appellant) was in possession of a document which he contended was a genuine bearer certificate issued by UBS AG for 4590 tonnes of Platinum (the Platinum Certificate) with a face value of approximately $66 billion. Mr Hamod attempted to sell the Platinum Certificate to a merchant bank, Utilis Australia Pty Ltd (Utilis). Utilis made inquiries of UBS as to the genuineness of the Platinum Certificate and was informed that it was a fake. UBS reported the matter to the NSW Fraud Enforcement Agency who set up a planned operation, with the cooperation of UBS and Mr Wall, an investment banker with Utilis. As part of the planned operation, Mr Wall was to engage in a transaction with Mr Hamod for the purchase of the Platinum Certificate. Mr Hamod was arrested on 20 January 1995 in the course of the purported sale of the Platinum Certificate to Mr Wall. He was charged with two offences under the Crimes Act 1900, s 178BB - making a false statement with intent to obtain a financial advantage, and one offence under the Crimes Act 1900, s 300(2) - using a forged certificate to do an act to another person's prejudice. The first of the two s 178BB charges was withdrawn prior to the commencement of the committal proceeding. The s 300(2) charge was discharged by the Magistrate at the committal proceeding. The appellant was acquitted of the remaining s 178BB charge. Mr Hamod brought proceedings against the State of New South Wales (first respondent) for false arrest and imprisonment, malicious prosecution and injurious falsehood. He also brought proceedings against UBS (second respondent) for conspiracy to injure by unlawful means or by lawful means and for injurious falsehood. The trial judge found verdicts for the State and for UBS on all causes of action and made a gross sum costs order against Mr Hamod. Mr Hamod appealed against the dismissal of his causes of action and the costs order. Mr Hamod also appealed against two interlocutory judgments relating to his Honour's refusal to admit the transcript of the Local Court proceedings into evidence and his refusal to recuse on the ground of apprehended bias. In all, the appellant raised 25 grounds of appeal and challenged 10 purported findings of fact.
Held (dismissing the appeal): (1)His Honour did not err in refusing an adjournment, notwithstanding that Mr Hamod did not have legal representation for the balance of the hearing. Conroy v Conroy (1917) 17 SR (NSW) 680; Squire v Rogers (1979) FLR 106; Vasser v Taylor Black [2010] FamCAFC 36; The Will of Gilbert (1946) 46 SR (NSW) 318; Civil Procedure Act , s 56(1); Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175; Bloch v Bloch [1981] HCA 56; 180 CLR 390; Maxwell Keun [1928] 1 KB 645; Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others (1986) 12 FCR 10; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. (2)His Honour was not obliged to admit the whole of the transcript of the Local Court proceedings in circumstances where the basis of the tender was for convenience, without any identification of the relevant portions of the transcript. Evidence Act , ss 55 and 56. (3)His Honour did not err in refusing to recuse on the ground of apprehended bias. Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215; Vakauta v Kelly (1988) 13 NSWLR 502; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 557. (4)The court has a duty to ensure that an unrepresented litigant does not suffer disadvantage from exercising the right to be self-represented. A trial judge has an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The trial judge did not fail in that duty. Dietrich v R [1992] HCA 57; 177 CLR 292; MacPherson v The Queen [1981] HCA 46; 147 CLR 512; R v Zorad (1990) 19 NSWLR 91; Tomasevic v Travaglini [2007] VSC 337; 17 VR 100; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944; Nagy v Ryan [2003] SASC 37; Jae Kyung Lee v Bob Chai-Sang Cha [2008] NSWCA 13 ; Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. (5)Contrary to Mr Hamod's submissions, his Honour did not find that Mr Hamod's failure to cross-examine witnesses meant that he had accepted the evidence of the respondents' witnesses as truthful. Rather, his Honour's finding was that Mr Hamod's own evidence did not establish the causes of action upon which he had sued. Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219; Knight v Maclean [2002] NSWCA 314; Reid v Kerr (1974) 9 SASR 367; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; N ominal Defendant v Saleh [2011] NSWCA 16. (6)The validity of the Platinum Certificate was in issue in the proceedings. The evidence that it was not genuine was overwhelming. Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (distinguished). (7)His Honour did not err in admitting and accepting the opinions and conclusions of Mr Westwood in circumstances where Mr Westwood had not been required for cross-examination. (8)Mr Hamod's circumstantial case that the Platinum Certificate was genuine failed. (9)Mr Hamod failed to establish his causes of action for false arrest and imprisonment and malicious prosecution. George v Rockett [1990] HCA 26; 170 CLR 104; Christie v Leachinsky [1947] AC 573; State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125; Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422; State of NSW v Tyszyk [2008] NSWCA 107. (10)The statements upon which Mr Hamod based his claims in injurious falsehood and conspiracy to injure were protected by the immunity given to statements made in court or in connection with court proceedings. R v Skinner (1772) Lofft 54; (1772) 98 ER 529; D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; Ollis v New South Wales Crime Commission [2007] NSWCA 311; 177 A Crim R 306; Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268; Jamieson and Brugmans v R [1993] HCA 48; 177 CLR 574; R v Beydoun (1990) 22 NSWLR 256; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Hargreaves v Bretherton [1959] 1 QB 45; Cabassi v Vila [1940] HCA 41; 64 CLR 130. (11)His Honour should not have disregarded the evidence of Mr Jason Lymbery. Nonetheless, his Honour did not err in determining that the evidence of Mr Lymbery could be disregarded as regard to Mr Lymbery's evidence would not have brought a different conclusion from that at which his Honour arrived. (12)There was no denial of procedural fairness in giving particular descriptions such as " spy thriller " and the like to Mr Hamod's evidence. Evidence has to be considered having regard to its relevance, weight and sufficiency. His Honour attended to that task in making detailed evidentiary rulings, not challenged on the appeal, and in determining whether the evidence was sufficient to establish Mr Hamod's causes of action. Beale v The Government Insurance Office of NSW (1977) 48 NSWLR 430; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402. (13)His Honour's comments upon the Magistrate's reasons were not integral to his reasoning and his dismissal of Mr Hamod's claims. Accordingly, no question of procedural fairness arose. (14)Uniform Civil Procedure Rules, r 51.36(2) requires the separate identification in the written submissions of substantial challenges made to primary facts found by the trial judge. It is not directed to conclusions drawn by the trial judge from primary facts; or to challenges based upon an argument that there was no evidence to support a conclusion; or to challenges made on the basis that the trial judge applied a wrong legal test. (15)His Honour's discretion did not miscarry as to costs. His Honour correctly exercised his power to make an order for specified gross sum costs. Civil Procedure Act , s 98(4)(c); Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23; Savage v Australian Unity Funds Management Ltd [ 2011] NSWCA 270; Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Smoothpool v Pickering [2001] SASC 131.
Section (1): Introduction [1] Issues on the appeal [4] Mr Hamod's arrest and imprisonment [5] The committal proceedings [9] Mr Hamod's pleaded case [12] General pleadings [12] Pleaded case against the State [15] False arrest and false imprisonment (sixth amended statement of claim paras (49)-(59)) [15] Malicious prosecution (sixth amended statement of claim paras (60)-(76)) [16] Injurious falsehood by members of the New South Wales Police (sixth amended statement of claim paras (77)-(83)) [21] The State's defence [23] Pleaded case against UBS [27] Conspiracy to injure by unlawful means (sixth amended statement of claim paras (36)-(42)) [27] Conspiracy to injure by lawful means (sixth amended statement of claim paras (43)-(48)) [30] UBS' pleaded defence [31] Identity of persons referred to in the pleadings [32] Conduct of the proceedings [33] The background facts stated by Mr Hamod in his statement of evidence and summarised by Harrison J [40] Events pre-September 1994 [42] Events in Australia [57] SECTION (2): THE ADJOURNMENT ISSUE: ground 22 [62] 20 August 2008 [66] 28 August 2008 [73] Trial judge's reasons of 29 August 2008 [85] Mr Hamod's submissions [107] The respondent's submissions [113] Mr Hamod's submissions in reply [120] An apparently odd turn in Mr Hamod's submissions [122] The medical evidence [127] Principles governing the Court's discretion on an adjournment application [131] Did his Honour err in refusing the adjournment? [146] Conclusion on the adjournment issue [153] Section (3): The transcript issue: Hamod v State of New South Wales (No 10) [2008] NSWSC 611 [154] Mr Hamod's submissions [162] Mr Hamod's oral submissions [168] The respondent's submissions [180] Did his Honour err in not admitting the whole of the transcript? [182] The Crown opening [191] Detective Sergeant Eastham's evidence [197] Mr Muhlbauer [206] Detective Sergeant Riddle [211] Dr Frey [216] Detective Senior Constable Day [221] Mr Wall [237] Conclusion on the transcript issue [243] Section (4): The bias issue: Hamod v State of New South Wales (No 11 ) [2008] NSWSC 967 [254] Legal principles [258] Trial judge's reasons [260] Mr Hamod's submissions [270] Consideration of the transcript of proceedings before Harrison J [273] Has the case of apprehended bias been made out? [308] Courts' duty to unrepresented litigants [309] Consideration of Mr Hamod's submissions [317] Conclusion on bias issue [332] SECTION (5): THE CROSS-EXAMINATION ISSUE: grounds 18 and 19 [334] Mr Hamod's submissions [334] Legal principles [336] Trial judge's reasons [341] Mr Hamod's submissions [347] Conclusion on the cross-examination issue [353] SECTION (6): VALIDITY OF THE PLATINUM CERTIFICATE: grounds 3, 4, 7, 14 and 20 [354] Was the Platinum Certificate genuine? [355] Mr Schicker's evidence [359] Mr Gauch's evidence [374] Mr Mueller-Lhotska's evidence [382] Ground 7: Mr Hamod's submissions [384] Conclusion on ground 7 [390] Ground 14: Mr Hamod's submissions [394] Conclusion on ground 14 [395] Ground 20: Mr Hamod's submissions [398] UBS' submission that Mr Westwood was not required for cross-examination [406] Conclusion on ground 20 [411] Grounds 3 and 4: Mr Hamod's submissions [413] The respondents' submissions [417] Conclusion on grounds 3 and 4 [420] SECTION (7): FALSE ARREST AND FALSE IMPRISONMENT: ground 15 [421] The power of arrest: legal principles [422] The pleaded case [427] Additional facts relating to false arrest [430] Mr Damanik's involvement with the Platinum Certificate [433] Mr Ludowici's evidence [439] Mr Wall's interaction with Mr Hamod and Mr Balding [451] Mr Teh's evidence [482] The intercepted conversations of 20 January 1995 [488] Detective Senior Constable Day's involvement in Mr Hamod's arrest [499] The Record of Interview [502] Detective Senior Constable Day's fact sheet [525] The trial judge's reasons [527] Mr Hamod's submissions [535] Was Mr Hamod's arrest lawful? [545] Conclusion as to false arrest and false imprisonment [556] SECTION (8): MALICIOUS PROSECUTION: grounds 9, 12 and 16 [564] Legal principles [564] The pleaded case [576] Trial judge's findings [580] Submissions on the appeal [585] Material upon which Mr Hamod relied [588] Mr Hamod's written statement handed to Detective Sergeant Eastham [588] The Buy/Sell Agreement [598] Intercepted conversations and Record of Interview [605] Evidence as to validity of the Platinum Certificate [606] Other evidence in the possession of the police [607] Mr Balding's statement [607] Mr O'Dowd's statement [624] Other evidence [634] Detective Senior Constable Day's evidence [635] Was the prosecution initiated and maintained without reasonable and probable cause? [636] Conclusion on malicious prosecution [656] SECTION (9): INJURIOUS FALSEHOOD BY MEMBERS OF THE NEW SOUTH WALES POLICE: ground 17 [659] The pleaded case [659] The newspaper publications [666] The trial judge's reasons [678] Submissions on the appeal [682] The State's submissions in respect of the claim for injurious falsehood [687] The nature of the cause of action in injurious falsehood [689] Was actual damage proved? [693] Where the statements also false and made with malice? [694]
Conclusion on injurious falsehood: para 77(a)-(d) [701] Were the statements alleged in (77)(e)-(f) and (h) protected by the immunity of statements made in court or made in relation to court proceedings? [702] Conclusion on injurious falsehood: para (77)(e)-(f) and (h) [712] SECTION (10): THE CAUSES OF ACTION BASED IN CONSPIRACY BY UBS: ground 21 [716] The pleaded case [716] Trial judge's reasons [721] Conclusion on the conspiracy claims [722] SECTION (11): EVIDENCE OF JASON LYMBERY: ground 13 [728] Trial judge's reasons [730] Mr Hamod's submissions [732] Nature of Mr Lymbery's evidence [735] Conclusion on Mr Lymbery's evidence [742] Section (12): The natural justice issues: grounds 1, 2, 5, 6, 8, 10 and 11 [744] Principles relating to an absence of reasons [747] Mr Hamod's submissions [750] Consideration of specific statements of which complaint is made [757] Additional complaints: bias (ground 6); erroneous finding (ground 8) and irrelevant consideration (ground 10) [769] Conclusion on natural justice issues [772] SECTION (13): CHALLENGES TO FINDINGS OF FACT [773] SECTION (14): THE COSTS ISSUE: HAMOD v STATE OF NEW SOUTH WALES (No 13) [2009] NSWSC 756 [777] Evidence and arguments in the proceedings below [780] Mr Hamod and Hamock Investments Pty Ltd [780] The State [784] UBS [788] Trial judge's reasons [793] Submissions on appeal [798] Mr Hamod [798] The State [803] UBS [804] Mr Hamod's response to the State and UBS [807] Legal principles [813] Conclusion on the costs issue [821] CONCLUSION ON THE APPEAL [828]
Section (1): Introduction 1BEAZLEY JA : The appellant, Mr Hamod, brought proceedings against the first respondent, the State of New South Wales (the State), for false arrest, malicious prosecution and injurious falsehood, and against the second respondent, UBS Australia Limited (UBS), for conspiracy to injure and for injurious falsehood. The proceedings were commenced following the State's unsuccessful prosecution of Mr Hamod for charges under the Crimes Act 1900, s 178BB and s 300 of making a false statement to obtain a financial advantage. A second s 178BB charge was withdrawn prior to the commencement of committal proceedings. The charge under s 300 was dismissed at committal. The charges related to Mr Hamod's purported conduct in attempting to sell a bearer certificate for nearly 5 M tonnes of platinum (the Platinum Certificate) with a face value of approximately $66 B. 2A company associated with Mr Hamod, Hamock Investments Pty Ltd (Hamock Investments), was a second plaintiff in the proceedings against each of the State and UBS. Hamock Investments' proceedings as against UBS were dismissed by consent on 14 November 2009. All remaining claims were dismissed by Harrison J after a contested hearing: Hamod v State of New South Wales (No 12) [2009] NSWSC 242 (the principal judgment). 3Mr Hamod now appeals to this Court against the dismissal of his claims against the State and against the dismissal of the conspiracy claims against UBS. His appeal includes complaints as to interlocutory orders and rulings that were made against him in the course of the proceedings: see Hamod v State of New South Wales (No 10) [2008] NSWSC 611; Hamod v State of New South Wales (No 11) [2008] NSWSC 967. He also appeals against the costs order made by the trial judge: Hamod v State of New South Wales (No 13) [2009] NSWSC 756.
Issues on the appeal 4Mr Hamod raised 25 grounds of appeal and challenged 10 purported findings of fact. Unless otherwise specified, the grounds relate to the principal judgment. Many of the grounds are overlapping, as were the submissions in support of them. However, in an attempt to deal in a coherent way with the issues raised by the grounds of appeal, I have put them in categories. The categories themselves overlap to some extent, as does the evidence in relation to the various categories. Accordingly, I have structured these reasons in sections so as to minimise the repetition that would otherwise have occurred. The sections of the judgments are as follows: (1) Introduction. (2) The refusal of Mr Hamod's adjournment application to vacate the hearing days appointed to commence on 8 September: ground 22 (the adjournment issue). (3) The refusal of the trial judge to admit the whole of the transcript of the Local Court proceedings: ground 1: (No 10) [2008] NSWSC 611 (the transcript issue). (4) His Honour's refusal to recuse himself on the ground of bias: ground 1: (No 11) [2008] NSWSC 967 (the bias issue). (5) His Honour's treatment of evidence that was not subject to cross-examination by Mr Hamod: grounds 18 and 19 (the cross-examination issue). (6) Issues relating to whether the Platinum Certificate was genuine: grounds 3, 4, 7, 14 and 20 (the validity of the Platinum Certificate issue). (7) The false arrest issue: ground 15. (8) The malicious prosecution issue: grounds 9, 12 and 16. (9) The injurious falsehood issue: ground 17. (10) The conspiracy to injure issue: ground 21. (11) The failure to accord any weight to the evidence of Jason Lymbery: ground 13 (the Jason Lymbery issue). (12) His Honour's failure to accord natural justice: grounds 1, 2, 5, 6, 8, 10 and 11 (the natural justice issue). (13) Challenges to findings of fact. (14) His Honour's making a lump sum costs order: (No 13) [2009] NSWSC 756 (the costs issue).
Mr Hamod's arrest and imprisonment 5Commencing in late 1994, Mr Wall, an investment banker with Utilis Australia Pty Ltd (Utilis), entered into negotiations with Mr Hamod relating to the purchase of the Platinum Certificate. Mr Wall had agreed with Mr Hamod that he would seek out a potential buyer of the Certificate. Mr Wall became suspicious as to whether the Platinum Certificate was a valid document and sought advice from UBS. UBS' advice was that the Platinum Certificate was not genuine and it referred the matter to the police. Thereafter, Mr Wall and UBS cooperated with the Fraud Enforcement Agency, in an operation code named " Operation Cleggars ", which was put in place to investigate Mr Hamod's attempts to sell what appeared to be a false or fraudulent document. 6Mr Hamod was arrested on 20 January 1995 at the National Australia Bank, whilst meeting with Mr Muhlbauer, Detective Biaggi (who was acting in the capacity of an intended buyer of the Platinum Certificate) and Mr Wall. Mr Balding, accountant, Mr Lees, solicitor and Mr Done, the bank manager of the Advance Bank branch at Nowra, were also present with Mr Hamod. Mr Hamod took part in an electronically recorded interview later the same day. The recorded interview extended to 110 pages and some 453 questions and answers. In his Record of Interview, Mr Hamod asserted that the Platinum Certificate was genuine and that he had authenticated the Certificate. He denied that he had asked for an up-front fee or had acted with an intention to defraud. 7Following the Record of Interview, Mr Hamod was charged with three offences under the Crimes Act , one offence under s 300(2) and two offences under s 178BB. The particulars of the offences as contained in the charge sheet were as follows: Section 300(2) "That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, at SYDNEY in the State of New South Wales, did use an instrument, to wit, a forged certificate of guarantee for 4,590 tonnes of platinum issued by the Union Bank of Switzerland which was, and which the said ANTHONY HAMOD knew to be false, with the intention of inducing another person to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that other person's or to another person's prejudice." Section 178BB "That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, between SYDNEY and NOWRA in the State of New South Wales, with intent to obtain for himself a financial advantage to wit, $60 Billion concurred in making a statement, to wit, the legitimate title of a certificate of guarantee for 4,590 tonnes of platinum issued by the Union, Bank of Switzerland, which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular." Section 178BB "That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, between SYDNEY and NOWRA in the State of New South Wales, with intent to obtain for himself a financial advantage to wit, $250 million dollars, concurred in making a statement, to wit, the legitimate title of a certificate of guarantee for 4,590 tonnes of platinum issued by The Union Bank of Switzerland which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular." 8Mr Hamod was taken into custody where he remained for over seven months until 24 August 1995, when he was released on bail.
The committal proceedings 9On 17 March 1997, committal proceedings commenced before Magistrate Horler in the Local Court. On 5 March 1997, prior to the commencement of the committal hearing, the first of the two s 178BB charges was withdrawn. The remaining s 178BB charge was amended and further particularised on 24 March 1997. The s 178BB charge that was ultimately dealt with by Magistrate Horler was particularised as follows: "That between the 13th October 1994 and 20th January 1995 the defendant with intent to obtain for himself and others a financial advantage ... made a statement to wit that a certificate of guarantee for 4590 tonnes of platinum issued by the Union Bank of Switzerland was genuine and that he had authenticated that certificate with UBS bank officers in Geneva, which statements he knew to be false or misleading in a material particular and which were made with reckless disregard as to whether they were true or false or misleading in a material particular." 10Mr Hamod was discharged on the s 300(2) charge on 3 June 1997. On the same day, Magistrate Horler found a prima facie case on the remaining s 178BB charge. Mr Hamod accepted an offer of summary jurisdiction under the Crimes Act , s 476 and the matter proceeded before her Honour on that basis. 11On 3 April 1998, Magistrate Horler acquitted Mr Hamod of the remaining s 178BB charge.
General pleadings 12In order to give context to the issues raised on the appeal it is convenient at this point to refer briefly to the pleaded case. More detailed reference to the pleadings is made when dealing with specific grounds of appeal. As Mr Hamod is the sole appellant, there is no reference to the pleaded case of Hamock Investments. 13Mr Hamod pleaded, by way of background facts, that PT Galaxy Indonesia Trust (Galaxy) was the true owner as the last holder of a certificate for 4590 tonnes of platinum (the Platinum Certificate), said to have been issued on or about 27 October 1978 by the Union Bank of Switzerland (UBS AG), the Swiss parent company of UBS. Mr Hamod pleaded that the Platinum Certificate in the hands of the bearer constituted evidence of the ownership of the commodity to which it related as against all but the true owner. He also pleaded that on or about 27 June 1994, he entered into an agreement with Galaxy to sell the Platinum Certificate and other bullion certificates in return for a commission. Mr Hamod alleged that in about July 1994, he began negotiations to sell the Platinum Certificate to third parties. He pleaded that in about November 1994, he entered into an agreement with Hamock Investments, a company which he had caused to be incorporated and in which he was a shareholder, to negotiate the sale of the Platinum Certificate " subject to the approval of " Mr Hamod (at [2]). Mr Hamod pleaded that the Platinum Certificate was authentic and genuine. 14Mr Hamod further pleaded that between July 1994 and about January 1995, he negotiated the sale of the Platinum Certificate with various purchasers. Mr Hamod pleaded that in about mid-October 1994, UBS offered the appellant " the right to deposit the Platinum Certificate with its organisation and withdraw funds against it ". Mr Hamod alleged that he declined that offer. Mr Hamod next pleaded that on or about 17 October 1994, UBS negotiated with him to purchase the Platinum Certificate. Mr Hamod alleged that by 2 January 1995, UBS was ready to purchase the Platinum Certificate for $66 B.
False arrest and false imprisonment (sixth amended statement of claim paras (49)-(59)) 15Mr Hamod alleged that members of the police force had been made aware, prior to 20 January 1995, of false allegations made by Galaxy that he had stolen the Platinum Certificate. He alleged that the police knew the Platinum Certificate was genuine and had no reasonable or probable cause to believe that it was not authentic. Notwithstanding that the police had knowledge of or were aware of these matters, Mr Hamod was arrested at premises of the National Australia Bank in Sydney, detained at Strawberry Hills Police Station and then gaoled at Parramatta, Goulburn and Long Bay gaols until 24 August 1995 in circumstances where Detective Peter Biaggi, an undercover police officer posing as a buyer, knew from conversations with a representative from UBS, Mr Muhlbauer, that the Platinum Certificate was genuine. Mr Hamod pleaded that he suffered loss and damage as a result.
Malicious prosecution (sixth amended statement of claim paras (60)-(76)) 16Mr Hamod pleaded that from about 20 January 1995 until 2 April 1998, the Commissioner of Police and New South Wales Director of Public Prosecutions initiated and maintained a prosecution against him for offences under the Crimes Act , ss 300 and 178BB in circumstances where by October/November 1994, the police knew, as a result of threats made by Galaxy, that he was in possession of a valid Platinum Certificate and that Galaxy was trying to retrieve the Certificate by making a false allegation that he had stolen it. Mr Hamod also pleaded that the police knew that UBS had negotiated the purchase of the Platinum Certificate for $66 B. 17The pleading alleged that as at 20 January 1995 the police were in possession of and knew that the Platinum Certificate was valid, being " a legitimate title " of a Certificate of Guarantee to 4590 tonnes of platinum issued by UBS AG. Mr Hamod pleaded that notwithstanding this knowledge, the police charged and prosecuted him with an offence under s 178BB when there was an absence of reasonable or probable cause as to his guilt: para (72). 18Mr Hamod particularised four sources of the police's knowledge that the Platinum Certificate was valid: discussions with Detective Sergeant Eastham of Nowra police; knowledge of the relationship between Galaxy and Mr Hamod and Galaxy's false allegation of theft of the Platinum Certificate; possession of evidence from a business associate, Mr Geoff Adelman in Canada, who had verified the authenticity of the Certificate; and an admission by Mr Muhlbauer, of UBS, to police on 20 January 1995 that the Platinum Certificate was genuine. 19Mr Hamod pleaded, alternatively, that there were significant doubts as to the validity of the prosecution, in that it had no possibility of success and was groundless. In the circumstances, it was alleged that the prosecution was malicious. Mr Hamod alleged loss and damage as a result. 20It is important to note that although the three offences with which Mr Hamod was initially charged were referred to in the pleading at para (60), the pleaded case of malicious prosecution was based only on the bringing and maintenance of the charge under s 178BB of which he was acquitted: see para (72).
Injurious falsehood by members of the New South Wales Police (sixth amended statement of claim paras (77)-(83)) 21Mr Hamod pleaded that on or about 20 January 1995, members of the New South Wales Police force made a series of statements to the media that they believed Mr Hamod was alleged to have committed the world's largest fraud attempt, or at least the biggest in Australia. Police also allegedly stated that they believed the Platinum Certificate to have been forged, that Mr Hamod had been the managing director of a small south coast engineering company that had gone bankrupt and that he had " slashed the $78 billion price of the certificate to just $250 M ". 22Mr Hamod alleged that at the time of making these statements, the officers in question knew that the matters were false and that their publication was likely to damage him. The publications were alleged to have been " actuated by malice in law ". Mr Hamod alleged that he sustained loss and damage, as the natural and probable result of the publications was that he lost the ability to trade either internationally or at all in order to sell the Platinum Certificate.
The State's defence 23The State's defence was predicated on the Platinum Certificate being false or fake or a forgery; the New South Wales Police having been so informed by UBS; and also having been informed by UBS that Mr Hamod was passing the Platinum Certificate off as a genuine document issued by it. The State denied that the Platinum Certificate was genuine or evidence of the ownership of any commodity. The State also denied that the New South Wales Police knew or were in possession of information sufficient for them to have known that the Platinum Certificate was genuine. 24The State denied that Mr Hamod was falsely arrested or imprisoned. It pleaded that at the time of the arrest the police officers effecting the arrest suspected Mr Hamod of having committed an offence and had reasonable cause to have that suspicion and were accordingly legally justified in arresting Mr Hamod. 25The State also denied that any prosecution of Mr Hamod was instituted maliciously or without reasonable or probable cause. 26The State did not admit the allegations that the Police had made certain statements to the media, or that they knew such statements were false, or were likely to injure Mr Hamod. It denied it had sufficient information to know the Platinum Certificate was genuine and denied that it was liable to Mr Hamod for injurious falsehood.
Conspiracy to injure by unlawful means (sixth amended statement of claim paras (36)-(42)) 27Mr Hamod alleged that UBS knowingly entered into an agreement, arrangement or understanding with its parent company, UBS AG, to make false statements to the New South Wales Police that the Platinum Certificate was a forgery, in order to prevent Mr Hamod from selling it to a third party. Mr Hamod alleged that UBS and UBS AG made statements to the New South Wales Police and to the Local Court alleging that Mr Hamod was in possession of the Platinum Certificate, which he was passing off as genuine when it was a fake. He alleged that the makers of the statements knew that the statements that the Platinum Certificate was a fake were false. 28Mr Hamod pleaded by way of overt acts of the arrangement that UBS laid an information with the New South Wales police alleging that Mr Hamod was in possession of the Platinum Certificate and was passing it off as genuine, when in fact it was a fake or a forgery. 29Mr Hamod alleged that the intention of UBS was to injure him by causing him to suffer financial harm by preventing him from negotiating, selling or otherwise dealing with the Platinum Certificate. Mr Hamod alleged that he in fact suffered such loss.
Conspiracy to injure by lawful means (sixth amended statement of claim paras (43)-(48)) 30Mr Hamod pleaded in the alternative, that in making the statements, UBS had no basis for asserting that the Platinum Certificate was a fake or a forgery, but did so for the sole purpose of stopping him from selling the Certificate on the open market. Mr Hamod alleged that he suffered loss and damage in that he was charged with offences under s 178BB and was thereby unable to trade the Platinum Certificate.
UBS' pleaded defence 31UBS denied that the Platinum Certificate was issued by UBS AG and pleaded that it was a forged and invalid document. It pleaded that on 12 December 1994, after having become aware of the existence of the Platinum Certificate and verifying that it was a forgery, UBS, through Mr Ludowici, UBS' Executive Director, Logistics, sent a facsimile to Mark Henderson of the Fraud Enforcement Agency in which he informed Mr Henderson that the Platinum Certificate was bogus.
Identity of persons referred to in the pleadings 32This is a convenient place to identify the persons referred to in the pleadings. Other persons relevant to the issues in the appeal will be identified as required in the course of these reasons.
Conduct of the proceedings 33Pursuant to directions made by the Court, the evidence-in-chief of the parties was presented by way of statements of evidence of witnesses. Mr Hamod filed a statement of evidence dated 26 July 2007, comprising 342 pages and 1256 paragraphs. Significant portions of the statement were rejected or admitted on a limited basis. In addition, the police brief served on Mr Hamod for the purposes of the Local Court proceedings was tendered in Mr Hamod's case. The police brief was admitted as evidence of the fact and its content only. 34The State filed statements of evidence by police officers and others involved in Mr Hamod's arrest and prosecution. It also filed statements of evidence relating to the authenticity of the Platinum Certificate. 35UBS filed statements by officers and employees of UBS AG and UBS, relating to the authenticity of the Platinum Certificate. 36The hearing of the proceedings commenced before Harrison J on 2 June and concluded on 17 September 2008 (save for final submissions which were made on 21 October 2008). Apart from the hearing of an adjournment application on 20, 27 and 28 August, there was a break in the proceedings from 20 June until 8 September 2008. In total, there were 15 days of hearing. 37During the proceedings, Mr Hamod sometimes appeared for himself and at other times was represented by senior or junior counsel. The details of the representation are set out below at [38]. Mr Hamod was represented by counsel on the appeal, including for the preparation of the written submissions. The detail of this is important, as a significant theme of Mr Hamod's submissions, both at first instance and on the appeal, focused on his position as a self-represented litigant. 38At the time of the commencement of the hearing on 2 June 2008, Mr Hamod was unrepresented and remained unrepresented for the first week of the trial, that is, from 2-6 June 2008 inclusive. Thereafter the position as to his legal representation was as follows: On the substantive proceedings 10 June 2008 (morning): Mr Hamod in person 10 June 2008 (afternoon): R McKeand SC 11-20 June 2008: R McKeand SC
On various notices of motion (including the adjournment application) 14, 20, 27 and 28 August 2008: Mr Hamod in person
Further on the substantive proceedings 8 September 2008: D Baran of counsel (on a limited basis seeking a stay of proceedings; application refused) Mr Hamod absent for the rest of the day 9 September 2008: Mr Hamod absent and no legal representation 15-16 September 2008: Mr Hamod in person 17 September 2008: Mr Hamod absent and no legal representation
39At all times, the State and UBS were represented by senior and junior counsel.
The background facts stated by Mr Hamod in his statement of evidence and summarised by Harrison J 40Harrison J, at [23]-[76] of the principal judgment, summarised, in a " severely truncated " form, Mr Hamod's evidence so as to provide some background to Mr Hamod's claims. His Honour did not make any findings of fact in respect of this evidence. 41The following section of these reasons is derived from that summary so as to set the background to the issues raised on the appeal. The material is referred to solely for the purpose of understanding Mr Hamod's version of the matters leading to his arrest and prosecution. There is some overlap with the information set out from the pleadings.
Events pre-September 1994 42Mr Hamod 's involvement with bullion certificates commenced in January 1994 when he was in Jordan. Some months earlier Hamock Constructions had commenced conducting business in the Middle East and had entered into a joint venture agreement for the export of agricultural products from Australia to Iran and for the importation of food from Iran to Australia, Japan and South East Asia. In the ensuing months, the business of Hamock Constructions diversified and grew such that between November 1994 and January 1995, the company and Mr Hamod had joint venture contracts with an Iranian company involving approximately $900 M in trade annually. 43In early 1994 whilst in Jordan, Mr Hamod was told by a Mr Mohamed Abdul Aziz, the general manager of Haya Trading, that the Indonesian authorities were selling their bullion at a large discount. Mr Hamod was asked if he could assist in locating the representative of the seller, who was said to be in Melbourne, to express Mr Aziz' interest in purchasing 500 tonnes of gold. Mr Hamod agreed and also agreed to act as an agent for Haya Trading for the purchase of bullion. 44In February 1994, Mr Hamod had discussions with a Mr Ivan Clarke who told him that Mr Michael O'Dowd was the " sellers' signatory " for the sale of several bullion certificates for gold and platinum. Mr Abdul Aziz expressed an interest in the purchase of a bullion certificate for 2980 tonnes of gold and directed Mr Hamod to obtain the offer from the seller and forward it directly to a Mr Antonio Enini who was " the mandate of a trust in Switzerland ". 45On 8 March 1994, Mr Hamod met Mr O'Dowd at Melbourne's Tullamarine International Airport. Mr O'Dowd said that he was " the seller's signatory " for the sale of " the bullion certificates ". Mr O'Dowd issued a letter of offer for the sale of 2980 tonnes of gold issued by UBS AG. On the following day, Mr O'Dowd issued a second letter for payment of a one per cent commission to Mr Hamod on successful completion of a sale. Mr Hamod sent the offer from Mr O'Dowd by facsimile to Mr Enini in Italy. He was subsequently instructed by Mr O'Dowd to forward the offer to a Mr Mukhaimer, who was described as " the mandate for the Khater Group ", as well as to other potential buyers. 46On or about 11 March 1994, Mr Enini telephoned Mr Hamod and confirmed that he had received the letter. Mr Hamod described Mr O'Dowd to Mr Enini, who then said words to the following effect: "You are dealing with the right person. I am the mandate for Alfima Trust from Switzerland. Alfima Trust is a buyer of bullions Gold for the Union Bank of Switzerland. This is a real deal. There are number of bullion certificates for sale. We are interested in the purchase of all of the bullion certificates for Gold. Stay in contact with O'Dowd and see if you can obtain the mandate for the sale of the bullions [sic] certificates...You do not have to know anything about bullion trading, just follow our directions and you could make millions in commissions. This is a real deal. Just follow our directions." 47Mr Hamod detailed a series of meetings and dealings relating to the bullion certificates in the months that followed. This included dealings with certificates said to relate to as much as 9270 tonnes of platinum and 6200 tonnes of gold. These dealings took Mr Hamod to many countries including Switzerland, Italy and Germany and involved meetings with a number of individuals, two of whom, Dr Hagan and Dr Frey, were said to be signatories to the Platinum Certificate. 48On 5 June 1994, Mr Hamod met Mr O'Dowd in Germany. Mr Hamod said that he accepted an offer by Mr O'Dowd to deposit with him the original Platinum Certificate. At the same time, Mr O'Dowd gave Mr Hamod a letter authorising Mr Hamod to hold and negotiate the sale of the Platinum Certificate. 49Mr Hamod made many references to receiving advice to the effect that the Platinum Certificate was valid or genuine. For example, on 6 June 1994, Mr Hamod said he travelled to Geneva where a Dr Khater, expert in the trading of bullion certificates, examined the certificate and informed Mr Hamod that it was " authentic and valid and issued by the Swiss Authority through [UBS AG] ". 50On or about 8 June 1994, Mr O'Dowd and Dr Khater met with Mr Hamod. Mr O'Dowd, on behalf of Tone Chi Investments and Dr Khater, on behalf of the Khater Group, signed a Buy/Sell agreement for the sale of 3 bullion certificates, including the Platinum Certificate, to the Khater Group. However, the banks refused to fund the Khater Group for the transaction because the records: "... inside [UBS AG] and inside the issuing Banks show that the owner of the bullion certificates was [Galaxy] and not Tone Chi Investments as alleged by Mr O'Dowd." 51In June 1994, Mr Hamod engaged a Mr Gary Calhoun to conduct due diligence on the Platinum Certificate. Mr Hamod said that Mr Calhoun advised him that the Platinum Certificate was authentic and valid and issued by the Swiss Authority through UBS AG. Mr Calhoun also advised that the owners of the Platinum Certificate were the Army and security forces of Indonesia. 52Mr Hamod also referred to dealings with the Treasurer of Morocco. 53Mr Hamod described how he and Mr O'Dowd were kidnapped, although he said that he and Mr O'Dowd were not aware that they had been kidnapped until they arrived at a hotel in Milan and found that they were the only guests of the hotel apart from Mr Enini " and his people ". The reason for the kidnapping, according to Mr Hamod's statement, was because an entity, Alfima Trust, placed an embargo upon the sale of Mr Hamod's bullion certificates. 54In early July 1994, Mr Enini " and his people " confiscated Mr Hamod's bag containing the Platinum Certificate and his files on the sale of bullion certificates. They were taken to a meeting in Zurich with a Mr Aleman who photocopied the Platinum Certificate, apparently to conduct some due diligence on it. Mr Hamod and Mr O'Dowd were next introduced to a Mr George Kurian, the son of an Indonesian sultan, who was the chairman of the Manix Group in London and who expressed interest in the Platinum Certificate. Apparently Mr Kurian's family had escaped to Switzerland when President Suharto came to power in Indonesia. Mr Hamod said that Mr Kurian inspected the Platinum Certificate and advised that it appeared genuine and that it would take a couple of days to conduct due diligence on the validity of the Certificate. 55In his statement, Mr Hamod set out the detail of how, in mid-July 1994, he agreed to assist Mr O'Dowd to escape from the hotel in Milan. Mr Hamod or Mr O'Dowd started an argument with the manager of the hotel in the hope of having the manager call the police. This is exactly what happened. Mr Hamod was locked up and interrogated by senior police officers in Zurich. It took two hours to convince the police officers that he and Mr O'Dowd had been kidnapped from the Manotel Hotel four weeks earlier. 56According to Mr Hamod, the police officers in Zurich inspected the Platinum Certificate in Mr Hamod's possession and took a copy of it. A senior police officer advised Mr Hamod that the Platinum Certificate and the papers for his mandate were genuine. Mr Hamod, apparently at the request of the Geneva police, was then taken to Geneva for questioning over the disappearance of Mr O'Dowd. The police in Geneva attempted to have Mr Hamod admit that he had murdered Mr O'Dowd and that he had stolen the Platinum Certificate from him. However, Mr O'Dowd reappeared on 21 August 1994 and Mr Hamod was advised that he was free to go. In late August 1994, Mr Hamod was escorted to Zurich airport by a unit from the Swiss Armed Forces to the door of the plane. Mr Hamod arrived back in Australia with the Platinum Certificate on or about 22 August 1994.
Events in Australia 57According to Mr Hamod, in late September 1994, Galaxy, the supposed true owner of the bullion certificates including the Platinum Certificate, and Mr O'Dowd, defaulted on an agreement with him, made in June of that year, to pay him 2.5 per cent of the face value of the Platinum Certificate as compensation for his " costs, expenses, commissions and damages payable from the sale of the bullions [sic] certificates ". By late 1994, Galaxy was said to have owed Hamock Investments approximately US$770 M and Mr Hamod US$12 B. 58In September 1994, Mr Hamod said he received unspecified threats and demands from Mr O'Dowd and Mr Clarke if he did not return the Platinum Certificate to them. 59Mr Hamod's statement next referred to events from August 1994 until 20 January 1995, which his Honour found impossible to summarise in a helpful way. There is no purpose in attempting to do so in these reasons. The supposed background facts referred to so far are sufficient to set the scene leading to Mr Hamod's arrest. 60The above summary provides a somewhat lengthy background of the matter as alleged by Mr Hamod, including his assertions in the Record of Interview. It will be necessary to examine certain aspects of the evidence in more detail when dealing with the issues raised by specific grounds of appeal. I pause to state that the broad range of issues raised on the appeal and some wide-ranging submissions have made this task a lengthy one, given that there were some volumes of appeal books in the matter. 61The first three issues identified in section (1) at [4], that is, the adjournment application, the transcript issue, and the bias issue, are matters which, if decided in Mr Hamod's favour, are likely to determine the outcome of the appeal. For that reason, they are dealt with first. Although there is a statement in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 557 that a bias allegation should be dealt with first on an appeal. I have found it of more assistance in understanding the way matters unfolded in the trial to deal with the bias issue after considering the adjournment issue and the transcript issue.
Ground 22: his Honour erred and miscarried his discretion by failing to grant the appellant an adjournment between the first and second groups of hearing dates in order for the appellant to obtain legal representation 62On 29 August 2008, the trial judge refused Mr Hamod's application for an adjournment of the proceedings: see Judgment 29 August 2008. 63The adjournment application was made by notice of motion dated 13 August 2008. The application had been foreshadowed on 11 August 2008, in an email to the trial judge's associate and in a series of similar but not identical letters sent to each of the respondents. I will refer to this correspondence compendiously as the 11 August correspondence. 64The notice of motion was supported by an affidavit of Mr Hamod dated 13 August 2008. It would seem that none of the 11 August correspondence was annexed to the affidavit. 65UBS also filed a notice of motion at this time seeking an order that specified dates be allocated for the evidence of three of its witnesses so as to suit the convenience of Mr Hamod. This motion was eventually consented to by Mr Hamod.
20 August 2008 66The hearing of the notice of motion for adjournment commenced before his Honour on 20 August 2008 but was adjourned part heard to permit Mr Hamod to adduce further evidence to 28 August 2008. His Honour directed Mr Hamod to file and serve any further evidence concerning the issue, which had arisen in Mr Hamod's argument, as to whether or not he had paid the costs of his legal representatives relating to the discovery proceedings. Leave was also granted to the respondents to issue a subpoena to Mr Diab, Mr Hamod's former solicitor, to attend on the adjourned hearing date to give evidence and to produce documents. 67The issue as to Mr Hamod's legal costs relating to the discovery process related to a costs order made by Simpson J in Mr Hamod's favour on an application in respect of discovery (the discovery costs). Her Honour had ordered that those costs be assessed and paid forthwith. During the hearing on 20 August 2008, Mr Hamod informed Harrison J that he had paid his solicitor the costs referable to those proceedings. He contended, therefore, that he was entitled to have the discovery costs paid directly to him. He said those monies would then provide him with funds to obtain further legal representation. He argued that as the State had not paid the discovery costs, he was deprived of the financial capacity to retain further legal representation. 68Certain matters that arose during the course of the hearing on 20 August 2008 need to be noted, as they form a background to the further hearing of the notice of motion on 28 August 2008. 69First, Mr Hamod did not oppose UBS' notice of motion to call the three witnesses on the days which had been specified to suit Mr Hamod's convenience. In that regard, Mr Hamod informed his Honour that he could hire a barrister to cross-examine these three witnesses. 70Secondly, his Honour reminded Mr Hamod that in late 2007 and early 2008, Mr Hamod had sought expedition of the matter because of the state of his health, Mr Hamod having told his Honour, at that time, that if the matter was not heard soon, he might die before it concluded. Mr Hamod responded that he still might die before the case was finalised. His Honour then commented that the adjournment application seemed to be contradictory to his earlier position, when he had sought expedition. Mr Hamod responded: "First, let's speak about health. I may have cancer in the lung and even if I have only one day or two days, or one week or two weeks or whatever time I have, I am entitled to feel justice has been done." 71Mr Hamod then complained that he had only been provided with the respondents' discovered documents in late May and early June 2008. He said those documents would shorten the whole hearing to a couple of days. 72Next, Mr Hamod asserted that he was entitled to the discovery costs personally because he had already paid Mr Diab and Mr McKeand SC amounts which he first asserted to be $450,000. He made other statements as to how much he had paid. For example, he said he had paid Mr McKeand fully and had paid Mr Diab $100,000 for which Mr Diab had not accounted.
28 August 2008 73The adjournment application resumed on 28 August 2008. On that occasion, Mr Hamod relied upon a further affidavit dated 26 August 2008 comprising 167 pages. His Honour considered that para (63) of that affidavit was the only paragraph that fell within the terms of his direction given on 20 August 2008. In para (63), Mr Hamod said he had paid to his solicitor, Mr Diab, $155,588. 74Mr Diab was present in court in response to the subpoena. Mr Hamod was cross-examined by senior counsel for the State and UBS respectively. Mr Diab was examined by senior counsel for the State and cross-examined by Mr Hamod and senior counsel for UBS. The State tendered a Certificate of Determination of the assessment of the discovery costs dated 19 August 2008 issued by the Costs Review Panel, together with the Review Panel's reasons. The Certificate of Determination specified that the discovery costs had been assessed in the sum of $273,000. 75The parties made oral submissions to his Honour. During the course of Mr Hamod's submissions, his Honour remarked that there had been a shift in the basis upon which he had brought the adjournment application when compared to the assertions made in the 11 August correspondence. On the adjournment application, Mr Hamod contended that he had paid his legal fees relating to the discovery proceedings. He said he required the payment of the discovery costs to him so he could pay for further legal representation. Mr Hamod submitted that: "... they are the funds we were going to use for the continuation of the hearing." 76At several points in his submissions, Mr Hamod reiterated his need to have access to the costs monies to which he considered he was directly entitled. Mr Hamod submitted that his solicitor, Mr Diab, had been negligent; that he, Mr Hamod, had previously obtained funds from third parties but, " they don't have money to lend me "; and referred to the difficulty he had in representing himself. He encapsulated the order he sought and the reason for it in these terms: "I ask for an adjournment to go and get legal representative to advise me if I have a case. If I don't have a case, I don't have a case." 77Senior counsel for the State addressed his Honour. Amongst other things, senior counsel directed attention to the likelihood that Mr Diab would have a lien over the discovery costs payable by the State, as would Mr Hamod's earlier solicitors. The detail of the submissions is not presently relevant. 78His Honour, in the course of the State's submissions, adverted to an issue which became central to his reasoning on the adjournment application. He said: "... there ... seems to be, doesn't there, a fundamental issue, someone will tell me about it I suppose, but in the back of my mind at the moment [the State's] obligation to make a payment pursuant to a costs determination is one thing, the plaintiffs by agreement [sic] in one form or another for the money in their hand or payment of disbursements is another thing. But Mr Hamod, on your case, would have to demonstrate in order to use non payment of the money to get an adjournment [the State has] become either liable to pay the money pursuant to a determination, failed to do it or somehow delayed the assessment process, in either way ascribing fault to them which could found an allegation he was kept out of funds in the relevant way ." (emphasis added) 79Senior counsel agreed that that was the relevant consideration and submitted that there was no evidence that the State had delayed in any way. 80Senior counsel for UBS addressed his Honour next, advancing the following submissions: (1) Mr Hamod's evidence was that he did not want to borrow any more money, not that he could not borrow any more money. (2) In the 11 August correspondence, Mr Hamod had stated " I expect to have counsel and an amended statement of claim in ten days "; and "I expect to be in a position in ten days to have counsel briefed". (3) Mr Hamod's statements were inconsistent with his now claimed inability to fund legal representation, as he could not realistically have expected to receive the monies from the discovery costs in 10 days. (4) There was no evidence of any inability to pay for lawyers when Mr Hamod chose to retain legal representation. 81Mr Hamod made submissions in reply. In summary, they were as follows: (1) He had initially tried to represent himself when the hearing commenced in June, but had underestimated his illness and his anxiety attacks, which caused him to get sidetracked from the issues in his case. He decided at that point to obtain legal representation. (2) At that time, his brothers, who saw his health deteriorating, provided him with financial assistance. (3) Those funds had been used up and he felt incapable of continuing with a further hearing set down for 8 September 2008. He submitted to the Court that if he did continue with the hearing, " it will only be a mess ", with the consequence that " justice will not prevail ". (4) The preparations for the resumption of the hearing on 8 September 2008 had run smoothly until 8 August 2008, when he learned that the State had lodged an appeal from the Review Panel's determination of costs. (5) He had various appointments with the Legal Aid Commission and with certain business people with a view to obtaining finance for the purposes of legal representation. (6) He had made contact with a solicitor and a Melbourne barrister. However, the barrister was not available in September (the hearing being set down to resume on 8 September). (7) He had concluded he was not fit to represent himself because of his illness. He stated that the court would not need a medical certificate to determine that was so, as it had been obvious from occasions when he suffered anxiety attacks in court while acting for himself. (8) He was not going to represent himself because of his ill health. He stated he was going to have legal representation. (9) He reiterated he was entitled to be paid monies by Mr Diab out of the discovery costs. He disputed that there was any evidence of a lien in favour of Mr Diab. 82Mr Hamod reiterated his position that there was a lot of evidence that he was going to be disadvantaged and that the court was going to be disadvantaged if he did not have legal representation. He again asserted that altogether he was owed " about $400 or $528,000 in court orders ". He complained that as he could not get itemised bills from his solicitors (by which I understand him to include previous solicitors as well as Mr Diab), he was not able to enforce these court orders. He again asserted that out of the $273,000, being the amount of the assessed discovery costs, he was to be repaid a sum of $105,000 or $120,000 in accordance with a letter from Mr Diab dated 14 December 2007. 83The letter of 14 December 2007 was an annexure to an affidavit of Mr Hamod dated 7 April 2009 (Annexure AH 6). The affidavit had been filed in proceedings brought by Mr Diab for a declaration that he was entitled to a lien over the discovery costs (the lien proceedings). The trial judge had ruled that the letter was inadmissible in that application, as it was irrelevant to Mr Diab's claim that he had a lien. His Honour made the declaration sought by Mr Diab in the lien proceedings. Leave to appeal from that decision was refused. In refusing leave, this Court also ruled that the letter was not relevant to the lien application: Hamod v Diab [2011] NSWCA 205. 84Although the letter was not in evidence in the lien proceedings, Mr Hamod referred to it in the course of his submissions to the trial judge on the adjournment application and no objection to that reference was taken by the respondents. The letter stated, relevantly: "As discussed earlier today, I enclose herewith authority to attend to assessment of the costs orders. Please sign and return same to me. I confirm that you will get back the money you paid to Mr. McKeand in relation to the work on discovery out of the costs assessed for his invoices on discovery which form part of the costs application. I will get the balance of the costs for my costs and disbursements. I also confirm that I will not press you for payment of the balance of the discovery invoice and I will not press you for payment of my second bill until you receive a determination from the Supreme Court in [the present case]."
Trial judge's reasons of 29 August 2008 85On 29 August 2008, the trial judge refused Mr Hamod's application for adjournment. The matters which he took into account and his reasons for so doing may be summarised as follows. 86His Honour first referred to the 11 August correspondence, in which the application for an adjournment was foreshadowed. Mr Hamod's opening paragraph in that correspondence as recorded in his Honour's judgment, was: "I refer to the above matter and I confirm that due to late discovery of documents from both defendants and due to late filing of the statements of witnesses from the defendants and due to non discovery by both defendants of documents that existed and not included in the list of discovery by both defendants, I shall seek to vacate the hearing that is scheduled to commence on 8 September 2008." 87The correspondence continued that Mr Hamod proposed to instigate or engage in a number of further processes and/or seek further orders in the matter. These included amending the sixth amended statement of claim and adding additional parties; seeking further discovery, both from the added parties and from the State and UBS; seeking to enforce existing discovery orders; interrogating UBS about the transfer of business and assets to another corporation whilst the proceedings were on foot; seeking an order for costs resulting from a breach of undertaking given by the State and UBS before Conti J in about April 2002; seeking the enforcement of the court order for the payment of the discovery costs that had been assessed but not paid by the State; and enforcing the costs order made by Conti J in the Federal Court of Australia against UBS in favour of Mr Hamod in respect of the period 6 December 2002 to 30 May 2003. Other orders were sought but need not be set out here. The correspondence was, as I have said, contained in his Honour's judgment of 29 August 2008 at pp 1 and 2. 88His Honour next referred to the contents of Mr Hamod's affidavit of 13 August 2008 filed in support of the adjournment application. 89His Honour noted that Mr Hamod was 58 years of age and living on a disability pension. His Honour next observed that the affidavit set out a history of the assessment of the discovery costs. As the manner in which the costs assessment proceeded was relevant to his Honour's determination, some further detail on that is necessary. 90Mr Hamod had deposed that in about December 2007, his former solicitors, Simon Diab & Associates, had filed an application for assessment of the discovery costs; that the State had filed objections to the claimed costs on 16 January 2008; that the Costs Assessor's Certificate was issued on 6 June 2008, the costs being determined in the sum of $273,660; and on 15 July 2008, the State filed an application for review of the costs determination. His Honour noted that subsequent to the date of the affidavit, the costs review had been determined and the Costs Assessor's determination in the sum of $273,660 had been confirmed. His Honour stated that he would proceed upon the basis that that sum was thereby payable by the first defendant within 28 days of 15 July 2008. 91Next, his Honour referred to Mr Hamod's evidence of attempts to secure funding to finance the cost of legal representation, noting that such attempts had been unsuccessful. His Honour noted an absence of detail about such attempts, save for two exceptions. The first was the assistance provided by Mr Hamod's two brothers. The second was Mr Hamod's evidence that he had approached a solicitor, Mr Chris Ford, who might be prepared to appear for him on terms or conditions not specified and that a Mr Gary Moffatt, barrister, might be prepared to appear, again on terms and conditions which were not clear, but that it was doubtful that Mr Moffatt would be able to appear should the matter resume on 8 September 2008. 92His Honour observed that there had been an evolution of the basis upon which Mr Hamod sought the adjournment from that indicated in the 11 August correspondence, in which there was only a faint indication that the discovery costs had anything to do with the application. 93His Honour then encapsulated Mr Hamod's application as being based on two factors. First, his financial position was such that he was not in a position to retain legal representation, but his position would have been alleviated had the State paid the discovery costs. His Honour noted that Mr Hamod's submissions suggested that it may not, in any event, be possible to have such legal representation in place or in the state of necessary preparedness for when the matter was due to resume on 8 September. Secondly, his medical condition was such that he could not attend to the proper presentation of his case. 94His Honour summarised the principal opposition to the application as being the absence of any real detriment to Mr Hamod by the State's failure to pay the discovery costs because such costs would only indemnify him to the extent that the legal costs had already been paid. His Honour noted that this appeared to be a sum of $60,500, being the fees of Mr McKeand SC, although his Honour also noted that Mr Hamod contended that he had paid something in excess of $100,000. His Honour noted that the respondents also relied upon the fact that other solicitors were owed costs, making it unlikely that there would be sufficient funds available to Mr Hamod to pay for legal representation out of the discovery costs. 95His Honour also noted that whatever the correct legal analysis of Mr Hamod's entitlement to the discovery costs, the State and UBS had argued that he had not made out a case that he was, or ever had been, without funds to retain legal advisors or to engage lawyers on terms not requiring immediate payment of their fees. In this regard, his Honour noted that Mr Hamod had been legally represented from time to time and the evidence did not suggest that he had ever been financially unable to retain lawyers whenever that was required. 96His Honour referred to UBS' submission that on Mr Hamod's own evidence, the position was not that he could not borrow further monies for the purposes of obtaining legal representation, but that he did not want to do so. An examination of Mr Hamod's bank accounts showed an influx of funds from time to time, apparently on loan from Mr Hamod's brothers for the purposes of funding the proceedings. His Honour also referred to Mr Hamod's proposals for the future conduct of the matter, namely, to borrow funds to retain lawyers if some alternative funding basis could not be arranged (at p 7). 97His Honour next considered the 11 August correspondence, which (except perhaps marginally) had not referred to any question of impecuniosity and the respondents' argument that Mr Hamod's evidence, as to any attempt to obtain legal representation, had been unsatisfactory. 98The full import of the submissions of the State and UBS was summarised by his Honour as being that : "... there is not now nor has there ever been a single apparent example of an occasion on or during which [Mr Hamod has] been without legal representation because [he] could not afford it. There is no evidence, according to [the State and UBS], of any dramatic shortfall of funding in the period since the proceedings were last before me." 99His Honour then moved to his consideration of the application and noted that Mr Hamod had not suggested fault, such as unfairly delaying the assessment process, on the part of the State in relation to the non-payment of the discovery costs. In any event, the State's obligation to pay the discovery costs had only crystallised in the previous few days. His Honour stated that even if the discovery costs were immediately payable, it appeared it was only a sum of $60,500 in respect of Mr McKeand SC's fees, to which Mr Hamod would be immediately entitled. That sum would only be sufficient to fund legal representation for Mr Hamod for two weeks at best, whereas the proceedings had been set down for a further five weeks. 100His Honour next referred to the length of time the proceedings had been on foot. The events subject of the claim had occurred in 1994 and 1995. Proceedings had commenced in the Federal Court and had been transferred to the Supreme Court in 2003. As Mr Hamod had emphasised, the case had been going on for 13 years. His Honour noted that it was apparent from his conduct of the case in the latter part of that period that the proceedings had taken and continued to take a significant toll on Mr Hamod. His Honour noted that Mr Hamod had gone so far as to say that the effect of the proceedings upon him and the conditions from which he suffered might hasten his demise. The Court had expedited the proceedings and given a hearing date in May 2008 to accommodate Mr Hamod's desire that the matter come on for hearing as soon as possible, due to the concerns as to his health. 101His Honour then had regard to the position of the State and UBS, noting that the proceedings had generated considerable legal and administrative work for them and that there had been many interlocutory applications, of which the adjournment application was but one. The adjournment application itself had occupied three full days of hearing time, with full legal representation engaged on behalf of the State and UBS. His Honour also observed that the further conduct of the matter without legal representation on Mr Hamod's behalf would prolong the proceedings and increase costs. 102His Honour then formulated the essential issue in the adjournment application as follows: "In order to obtain a vacation of the hearing date, as [Mr Hamod seeks], it would be necessary for me to be satisfied in the particular circumstances of this case that the prospect of a fair hearing being given to [Mr Hamod] had been reduced by some action or inaction on the part of the defendants or one of them. In particular, having regard to the way [Mr Hamod] put [his] case on this application, [Mr Hamod] would have to show that the failure by the first defendant to make payment of costs ordered to be paid by it on the issue of discovery had not been made in a timely way after an obligation to do so had crystallised. That has not yet happened." (original emphasis) 103His Honour held that he was not satisfied that there had been a relevant failure by the State, that is, any untimely or inappropriate delay, nor was he satisfied that Mr Hamod had been relevantly prejudiced by " a so called failure " to pay the discovery costs. His Honour noted there had not been an earlier application by Mr Hamod for any concession because of an inability to retain lawyers due to an insufficiency of funds. This led his Honour to categorise the alleged significance of the so-called failure by the State to pay the discovery costs as being " opportunistic and disingenuous ". His Honour stated that he was not satisfied Mr Hamod was unable to retain legal representation on either a conditional or unconditional basis for the further five weeks listed for the hearing. 104His Honour next referred to Mr Hamod's health, stating that he was concerned that Mr Hamod's health would further suffer as a result of the proceedings. He also stated he was satisfied that Mr Hamod's ability to present the case without legal representation would correspondingly suffer. His Honour considered, however, that those matters could not be laid at the feet of either the State or UBS. His Honour then said: "... any leverage that [Mr Hamod] may have to vacate five weeks of hearing, commencing in ten days, would have to start by showing some fault on the part of the defendants. None has been shown." 105His Honour took into consideration that there had been no offer by Mr Hamod concerning the costs thrown away or occasioned by an adjournment if it was granted. In this regard, his Honour noted that if an adjournment was granted through no fault of the defendants, it would carry with it, in the normal course, a costs order and Mr Hamod's own case suggested that such an order would not be able to be met. His Honour considered, therefore, that it would be improper to expose the State and UBS to wasted and probably irrecoverable costs if those efforts expended for the preparation of the second tranche of allocated hearing time could be better used in the hearing itself. 106His Honour thus dismissed the motion.
Mr Hamod's submissions 107Mr Hamod contended on the appeal that the trial judge had committed error of the kind identified in House v R [1936] HCA 40; 55 CLR 499, at 501, in that the decision to refuse the adjournment was: "... unreasonable or plainly unjust [such that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." 108Mr Hamod accepted that his Honour had correctly referred to all relevant circumstances in considering the application and had not referred to irrelevant considerations. He contended, however, that there was little prejudice to the respondents if the adjournment was granted and no real prejudice as the respondents knew that there was no real prospect of recovering any costs from him. Mr Hamod submitted that the only prejudice to the State and UBS would have been a minor inconvenience. 109Mr Hamod submitted, however, that the prejudice to him was substantial. He was a disability pensioner and there was a large volume of evidence to deal with. All that he was seeking by the adjournment was to have sufficient time in which to engage legal representation. He submitted that the refusal of the adjournment meant he lost the opportunity to properly argue his case and to put specific and well-argued propositions to the Court. 110Mr Hamod argued that that the prejudice he had predicted in his submissions to his Honour on the adjournment application had come to fruition. He had been unable to secure legal representation. He had not cross-examined the respondents' witnesses, a matter he contended was of significance in his Honour's determination of the principal proceedings against him. He submitted that his failure to cross-examine should not be viewed as having been taken on any informed or considered basis. He contended that the evidence of the respondents' witnesses, particularly those called by UBS, was " extremely controversial " and they should have been challenged in cross-examination in a way similar to the challenge made in the Local Court. Mr Hamod said he did not have the experience to do so and his health was such that he was not up to that difficult task. 111Mr Hamod claimed further prejudice in that he had left the courtroom on a number of occasions during the presentation of the cases of the State and UBS and had not given any informed attention to the making of submissions. This last submission ignored the 223 pages of written submissions submitted by Mr Hamod on 1 October 2008, supported by a short list of authorities which included A v New South Wales [2007] HCA 10; 230 CLR 500 . Mr Hamod presented a detailed argument in support of each of his causes of action with reference to the evidence that he contended supported his case. Mr Hamod also submitted that the court's power to grant an adjournment conferred by the Civil Procedure Act 2005, s 66 should have been taken into account by his Honour and applied correctly, having regard to the provisions of and the dictates of justice pursuant to the Civil Procedure Act , ss 57 and 58. 112It followed from Mr Hamod's submission that the trial judge's exercise of discretion in refusing the adjournment caused the trial to miscarry. Mr Hamod sought a new trial.
The respondents' submissions 113The State and UBS contended that there was no error in his Honour's exercise of discretion. 114The State's submissions were of an intensely abbreviated nature and made two points: first, the trial judge had given the appellant ample opportunity to present his case; secondly, the court was constrained in the assistance it could give to a self-represented litigant. No evidentiary or argumentative support was given for the first proposition. 115UBS submitted that the absence of legal representation was a matter of choice by Mr Hamod and that there was no reason to think that if the adjournment was granted, the outcome of the trial would have been different. 116UBS further submitted that Mr Hamod's submission, that the prejudice to him had come to pass, particularly his absences from the courtroom and his failure to cross-examine, omitted the context in which the events of 8 September occurred, the first day of the further hearing of the matter. 117At the commencement of the hearing on 8 September 2008, Mr Hamod was in court when counsel on his behalf sought a stay of proceedings. That application failed and counsel was excused. Mr Hamod also sought to be excused. His Honour informed Mr Hamod that it was a matter for him whether he stayed or left, but that some application adverse to his interests might be made in his absence. Notwithstanding that advice, Mr Hamod left the courtroom. The hearing then resumed in his absence. Mr Hamod was also absent on 9 and 17 September, but was present on 15 and 16 September. 118UBS submitted that the Court could not infer that Mr Hamod had no legal advice as to the consequences of his non-attendance, given that he was represented in court on the morning of 8 September. It further contended that if he had no legal advice, there was no basis for attaching less weight to unchallenged evidence than would otherwise be the case simply because Mr Hamod reverted to being a litigant-in-person. 119UBS further submitted that an adjournment would not have been of any benefit to Mr Hamod in his case against it, as evidence upon which the claims against it were based was the subject of the absolute privilege of witness immunity (App Tr 20.07.11, 10). In any event, at the conclusion of the first tranche of the hearing, in June, Mr Hamod's case in chief was almost at its conclusion. Only his re-examination remained. At that point, Mr Hamod had not tendered any evidence as to the authenticity of the Platinum Certificate, said to be the central plank of his case and which was critical to his case against UBS.
Mr Hamod's submissions in reply 120In reply, Mr Hamod directed his submissions principally to his status as an unrepresented litigant; to the comments of the trial judge that, as an unrepresented litigant, he was hampered in the prosecution of his case and that this also posed difficulties for the Court; and to the proposition that he was suffering from ill health, as was known to the trial judge from previous interlocutory proceedings, and that the refusal to grant the adjournment to obtain legal representation could (and did) lead to significant forensic errors by him, in particular, in not challenging witnesses in cross-examination and in not renewing the tender of the transcript or so much of it as was of critical importance. Mr Hamod submitted that in the circumstances: "There was no proper discretionary reason not to have given [him] sufficient time, given that there had been two stages of the hearing in any event to have given him a sufficient amount of time to retain lawyers or even seek pro bono assistance." 121Mr Hamod reiterated that this Court should intervene so as to redress the obvious injustice that flowed from the refusal of the adjournment application. Mr Hamod also pointed out that he had no finances and could not meet any order for costs, whether those thrown away by the adjournment or otherwise. Accordingly, an adjournment would not have altered anything.
An apparently odd turn in Mr Hamod's submissions 122A significant part of Mr Hamod's argument that his Honour's discretion had miscarried, because it had resulted in substantial injustice to him, was based upon his failure to cross-examine witnesses and his failure to tender relevant parts of the transcript in the Local Court. Mr Hamod also submitted that he was significantly prejudiced because he was not able to properly agitate his case to prove that, on the balance of probabilities, the Platinum Certificate was genuine. He said that he had intended to make out an inferential case that the Platinum Certificate was genuine based upon evidence he would have elicited from UBS' witnesses in cross-examination, similar to the cross-examination that took place in the Local Court. 123Mr Hamod said he would have asked the Court to draw the rational inference that UBS must have known that the Platinum Certificate was authentic and valid because it looked so defective. Reference was made to the spelling errors in the Platinum Certificate and other unusual features of it. He said his case was that those mistakes and unusual features were deliberate so as to ensure that the Platinum Certificate could only be identified and validated by one person, UBS AG (App Tr 20.4.11, 23). 124This appeared to be a surprising submission, as it had not featured in the proceedings before Harrison J. It was also an apparently unusual, if not ridiculous submission, given the comprehensive evidence given by UBS' witnesses that the Platinum Certificate contained an extraordinary number of errors and was not recognisable as anything ever produced by UBS AG. This evidence is examined in more detail below. However, Mr Hamod's assertion was not entirely new. Mr Hamod had said something to that effect in his Record of Interview on 20 January 1995. At Q 111-115, Mr Hamod said that he had met a Mr Kurian, a potential buyer of the Platinum Certificate, in Zurich. He said that over a lengthy meeting, Mr Kurian not only confirmed the authenticity of the Platinum Certificate, but explained that it and other bullion certificates were: "... designed and written in a manner that if somebody stranger hand it in, they would understand it that it's a fake document ... ... the reason they designed them in that manner with false names and et cetera, et cetera, et cetera, is to cause what we call a delay in, in reaction and a delay of me walking into the bank and says, 'Look, I own that certificate. I want it cashed.'" 125When asked questions as to the value of the Platinum Certificate, Mr Hamod, at Q 117-Q 118, said: "UBS have to confirm the metal ... they have to confirm the value, they have to confirm the whole certificate, because the certificate [is written] in a manner that if Mr Average receive the certificate, oh, he would look at it and he would think it's just a fake paper." 126Although there had been mention of this in Mr Hamod's Record of Interview, no such assertion was contained in his lengthy statement of evidence in the proceedings before his Honour, including in those paragraphs that were not read or which were rejected by his Honour as being not relevant. In the normal course, Mr Hamod would not be given leave to raise this on appeal as it is a matter upon which evidence would almost certainly have been given by UBS' witnesses. However, having regard to the evidence given by UBS' witnesses in relation to the validity of the Platinum Certificate (discussed below in section (6)), any such argument could not have succeeded and should be rejected.
The medical evidence 127Mr Hamod also referred to the medical evidence before his Honour on the adjournment application. This submission was not entirely accurate, as no medical evidence was adduced on the adjournment application. However, a substantial body of medical evidence had been adduced in support of Mr Hamod's application for expedition of the hearing of the proceedings, comprising reports from Mr Hamod's treating psychiatrist, Dr Chee; Mr Hamod's surgeon, Dr Claxton; his thoracic physician, Dr Aouad; and his general practitioner, Dr Goh. There were also a number of radiological reports in evidence on that earlier application. 128The psychiatric evidence revealed that Mr Hamod had been diagnosed with a Major Depression and a Post Traumatic Stress Disorder. Dr Chee, in his reports over a 12 month period from 22 June 2006 to 18 August 2007, expressed the opinion that the legal proceedings, including the criminal proceedings, had been intolerably stressful and detrimental to Mr Hamod. Dr Chee urged that the proceedings be expedited for reasons of Mr Hamod's " extremely fragile mental health ". 129The other medical reports revealed that during the period 2006-2007, Mr Hamod had other significant illnesses, including cardio-vascular disease, for which he had undergone operative treatment, and respiratory disease, in particular, emphysema and mediastinal and hilar lymphadenopathy. In addition, Mr Hamod was a non-insulin dependant diabetic, whose condition had worsened over time. It was a consistent theme in the medical reports relating to these conditions that the prognosis for his condition being stable or not deteriorating was dependent upon the level of stress under which Mr Hamod was placed at any point of time. 130Although the medical evidence was not re-tendered on the adjournment application, it is apparent from his Honour's references in his reasons of 29 August 2008 that he considered Mr Hamod's health to be a relevant consideration in the determination of the application.
Principles governing the Court ' s discretion on an adjournment application 131His Honour's refusal of the adjournment application was a discretionary determination relating to a matter of the Court's practice and procedure. Such an application is to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy (1917) 17 SR (NSW) 680 at 682; Squire v Rogers (1979) FLR 106 at 113; Vasser v Taylor Black [2010] FamCAFC 36 at [31]. 132Appellate courts exercise particular caution in intervening in such decisions. The principled approach to appeals in matters of practice and procedure is reflected in the oft-cited statement of Sir Frederick Jordan in The Will of Gilbert (1946) 46 SR (NSW) 318 at 323: "I am of the opinion that ... there is a material difference between the exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of cases, if a tight rein were not kept on interference with the orders of Judges at first instance, the result would be disastrous for the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could at will in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." 133See also Dougherty v Chandler (1946) 46 SR (NSW) 370 at 374; Leeder v Ellis (1952) 86 CLR 64; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170; Selwan Property Holdings Pty Ltd v Grocon Constructions Pty Ltd [2009] NSWCA 73; Malouf v Prince [2009] NSWCA 159. 134As these authorities make clear, appeals from discretionary decisions on matters of practice and procedure raise particular considerations for an appellate court, regardless of whether an appeal is brought directly from an interlocutory decision, or from the court's final determination of the matter. The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, the discretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation. 135The court's concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit. Nor, in this State, is it divorced from the court's statutory obligation to ensure the just, quick and cheap resolution of the real issues in the dispute or proceedings: the Civil Procedure Act , s 56(1). See also Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at 182-183, 200-201, 205, 210-211, 217-218. 136For these reasons, before an appellate court will interfere with a discretionary judgment in a matter of practice and procedure, the question whether injustice flowed from the order appealed from will be a relevant and necessary consideration: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc . See also Bloch v Bloch [1981] HCA 56; 180 CLR 390; Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others (1986) 12 FCR 10. In Bloch v Bloch , Wilson J at 395-396 referred to the statement of Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653 in relation to an appellate court's role on an appeal relating to an adjournment application, as follows: "I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do what which (sic) the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so." 137In Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others the Court (Sweeney, Pincus and Burchett JJ) stated, at 12-13, that in circumstances where the considerations relevant to the question of adjournment were before the trial judge and carefully weighed by the judge, and where positive error was not alleged on the appeal, the application for leave to appeal against that refusal would be refused. This statement should not be understood as a statement of absolute principle. Rather, I understand the Court's remarks as expressing the conclusion in that case, having regard to the principles that govern such applications. Their Honours were acknowledging that a mere difference of opinion held by the appellate court as to the outcome of a discretionary decision on a matter of practice or procedure was insufficient to attract appellate intervention. Some error or unjust result needed to be demonstrated. 138In Squire v Rogers , the principles applicable to applications for amendments and adjournments were further discussed. Deane J, at 113-114, stated: "The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682 ... A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to ... the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion. " (emphasis added) 139The considerations relevant to the determination of interlocutory applications were recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University . In Aon Risk Services Australia Ltd , the Court was dealing with the rules of court of the Supreme Court of the ACT. Those rules are relevantly similar to the Civil Procedure Act , s 56 ff. Although the application in question in that case was an application to amend pleadings, the High Court addressed the concerns of case management more generally, noting the impact that substantial delay and wasted costs has on parties, the court and other litigants. Relevant to the application in this case are the comments of French CJ, at [5]: "[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system." 140His Honour further stated, at [30]: "Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes." 141A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act , s 56. What constitutes a " just resolution " is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation. In Aon Risk Services Australia Ltd , Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [98], stated: "The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs." 142In his submissions to this Court, Mr Hamod made specific reference to these provisions, as well as to s 66. He submitted that his Honour was obliged to apply s 66, subject to s 56, and to then make his determination according to the dictates of justice as required by ss 57-58. Section 66 provides, relevantly, that the court may at any time, by order, adjourn proceedings. 143There is nothing new in this provision. It merely confers upon the court a discretion to grant an adjournment. The court has always had that power, both in the exercise of its inherent jurisdiction and pursuant to the Supreme Court Act 1970. Nor is s 56 a new concept. Rather, it is the statutory embodiment of jurisprudence that had already gained prominence in the case law. Issues of delay, costs and inefficiency have led to active case management in the courts as a recognised feature of the administration of justice for at least the last two decades. 144Mr Hamod also relied upon ss 57 and 58. Section 57 provides that in furthering the overriding purpose of a just, quick and cheap resolution of case, the court is required to manage cases having regard, inter alia, to " the just determination of the proceedings ": s 57(a). Section 58 provides that in making any order or direction the court is to " seek to act " in accordance with the dictates of justice, including having regard to the " degree of injustice that would be suffered by the respective parties as a consequence of any order or direction ". 145These provisions have been the subject of frequent judicial comment: Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339; Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17 at [47]; Richards v Cornford (No 3) [2010] NSWCA 134; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. In McMahon v John Fairfax Publications Allsop P, at [26], referred to the case management provisions ss 56-60 as follows: "The operation of the Civil Procedure Act , ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings'."
Did his Honour err in refusing the adjournment? 146Having regard to the nature of the alleged error, namely, that the refusal of the adjournment was so unreasonable or so plainly unjust that the Court should infer some error, I have set out the detail of the evidence and arguments, as well as his Honour's reasons. For my part, I see no error in his Honour's discretionary decision to refuse the adjournment. It is apparent, as his Honour pointed out, that Mr Hamod's reasons for seeking the adjournment shifted during the course of the application. His Honour considered that, insofar as the adjournment application was based on the State's failure to pay the discovery costs, such reason was disingenuous and opportunistic. That finding was not directly challenged, but in any event, the argument in relation to the discovery costs did not advance Mr Hamod's case. Those costs were subject to a lien and that portion of the costs attributable to Mr McKeand's fees would not have provided Mr Hamod with sufficient monies to fund the balance of the proceedings in their entirety. 147His Honour was in a position to assess Mr Hamod's evidence and the case he advanced on the adjournment application. It is clear his Honour considered that the shifting ground on which the application was built indicated that Mr Hamod grasped at different arguments at different times to suit his purposes. His Honour was entitled to find that Mr Hamod was disingenuous and opportunistic in respect of the submission relating to the discovery costs. The more formidable problem for Mr Hamod, however, was the existence of the lien. This meant that he would not be able to have access to the discovery costs even if they had been paid. 148His Honour also weighed up the difficulties Mr Hamod had as a self-represented litigant and gave consideration to his medical conditions. Importantly for the purposes of the outcome of the application, although there was evidence that the proceedings were affecting his health, there was no evidence that Mr Hamod could not continue with the proceedings at that time. 149His Honour was also required to have regard to the interests of the respondents. As his Honour indicated, given Mr Hamod's financial position, the respondents were unlikely ever to be able to recover their costs thrown away by the adjournment. His Honour was also clearly not satisfied that Mr Hamod would be able to obtain legal assistance or legal representation, even if an adjournment was granted. His Honour considered that the costs the respondents would incur in the proceedings were better spent by having the hearing completed. It was apparent that his Honour was not satisfied that anything was likely to be achieved by the adjournment and that it was in the interests of both parties that the hearing proceed as scheduled. This was an appropriate consideration and his conclusion in respect of it was open to him. 150Mr Hamod based his principal challenge to the exercise of his Honour's discretion upon the fact that, in refusing the adjournment, the prejudice to him " came home ". In particular, he referred to the importance his Honour placed in the determination of the principal proceeding upon Mr Hamod's failure to cross-examine witnesses. In this regard, he contended that had he been given the opportunity to obtain legal representation, witnesses would have been cross-examined to the same effect as they were in the court below. This would have allowed him better to construct his inferential case that the Platinum Certificate was genuine. 151This argument suffers from a fatal flaw. The principal witness as to the validity of the Platinum Certificate in the Local Court was Mr Schicker. The transcript of his evidence in that Court was in evidence in these proceedings. Mr Schicker was extensively cross-examined in the Local Court proceedings by counsel for Mr Hamod, the transcript of the cross-examination spanning nearly 50 pages. Under cross-examination, Mr Schicker stated that the Platinum Certificate was a " fantasy "; that the account numbers on it had never been used by UBS worldwide; that the names on it were not names of persons who had worked for UBS worldwide; that the names of Drs Frey and Hagan were not known in UBS worldwide; that UBS AG did not have the capacity to store 4590 tonnes of platinum; and that the absurdity of it being able to do so could be demonstrated by contrasting it with the fact that Switzerland's entire stock of gold was 1200 tonnes. 152In the proceedings before his Honour, Mr Schicker's evidence was supported by other witnesses in ways that were irrefutable. The inferential case Mr Hamod said he wanted to mount, namely, that the fake appearance of the Platinum Certificate was deliberately contrived to conceal its authenticity, was not one that could ever have succeeded. It bears the same hue as the Platinum Certificate itself, that is, something that was pure fantasy. In addition, his purported reliance on having had the Platinum Certificate authenticated by persons overseas, including by Drs Frey and Hagan, was contradicted by Dr Frey in the proceedings in the Local Court. This is discussed further in section (3).
Conclusion on the adjournment issue 153It follows, in my opinion, that his Honour's decision was not so unreasonable or unjust as to call for appellate interference. In my opinion, ground 22 has not been made out.
Section (3): The transcript issue: Hamod v State of New South Wales (No 10) [2008] NSWSC 611 154In Hamod v State of New South Wales (No 10) , a judgment given on 18 June 2008, the trial judge rejected the tender of the whole of the transcript of the Local Court proceedings (the transcript). In rejecting the tender, his Honour did not rule that the whole transcript was inadmissible. Rather, at [34], his Honour rejected the transcript " at that stage " of the proceedings. 155His Honour's reasons for rejecting the tender " at that stage " are to be found, relevantly, at [24] ff, where he stated: "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 [State] 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 [Mr Hamod]. 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, [Mr Hamod] 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 [Mr Hamod does] not limit the utility of the transcript only to such hypothetical circumstances. Indeed, Mr McKeand [for Mr Hamod] 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. ... 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 [Mr Hamod] in making out [his] 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 ... 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 [Mr Hamod] 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." 156At [28] ff, his Honour referred to the State's further argument that the transcript was inadmissible for use in the proceedings on the basis of witness immunity. His Honour did not determine that issue in this judgment, as Mr Hamod had not identified which portions of the transcript he proposed to rely on in support of his malicious prosecution claim, which is a recognised exception to the principle. 157At [33], his Honour said that he could not rule on the State's objection, that the transcript was hearsay evidence, without scrutinising the transcript. He said that such consideration should abide any application by Mr Hamod to tender specific portions of the transcript. 158Before turning to the submissions on the appeal, two further things should be noted. First, Mr Hamod had exhibited to his Statement of Evidence that portion of the transcript which contained the evidence in the Local Court of Detective Sergeant Eastham, Mr Ludowici, Mr Muhlbauer and Detective Riddle. Objection was taken to those exhibits on the basis, inter alia, that they were hearsay. His Honour deferred ruling on the objections and it appears that he did not ever do so. 159Secondly, the transcript of the evidence given in the Local Court by Mr Ludowici, Mr Muhlbauer and Mr Schicker was admitted as evidence in the proceedings. This occurred because the transcript was annexed to their respective witness statements and no objection was taken. Mr Hamod was not present in court when those statements were tendered. Those witnesses affirmed the truth of the evidence in the transcripts, save for some minor incidental matters, such as the wrong spelling of names. 160On 15 September 2008, Mr Hamod made a second application to tender the transcript. His Honour again rejected the tender and on this occasion, expressed a further reason for rejecting it, namely: "... following the hearing before Magistrate Horler Mr Hamod was discharged. Indeed, that discharge forms the fundamental basis of his proceedings against the [State]. To that extent any material that passed in evidence before the magistrate effectively merges in the decision in his favour upon which he now relies. For that reason as well it seems to me that the transcript of the proceedings before the magistrate would be wholly irrelevant." (Supp Red 197) 161With respect to his Honour, I do not consider this reasoning to be correct. However, there was no direct challenge to it on the appeal and I say nothing further about it. It is necessary then to turn to the question raised by this ground of appeal, namely, whether the whole of the transcript should have been admitted on 18 June 2008.
Mr Hamod's submissions 162Mr Hamod advanced the following submissions in support of this ground of appeal. 163First, he submitted that it could be assumed from his Honour's reasoning and, in particular, the qualified basis upon which his Honour rejected the tender, that the transcript was prima facie admissible. Mr Hamod pointed out the incongruity in his Honour accepting the police brief into evidence and not the transcript, which contained the cross-examination on the statements in the police brief. 164Secondly, he submitted that the transcript was relevant and therefore admissible: Evidence Act 1995, s 55. As to relevance, he argued that the transcript was relevant in the malicious prosecution claim to establish that the prosecution had been maintained without reasonable and probable cause. He submitted that the objective sufficiency of the material, both in respect of the instigation of the appeal and its maintenance, had to be assessed in light of all of the circumstances, including the evidence given in cross-examination. Mr Hamod submitted that support for these submissions was to be found in A v New South Wales at [59], [77] and [87]. 165Thirdly, Mr Hamod submitted that the transcript was relevant to the element of " malice " in the malicious prosecution claim. In particular, Mr Hamod submitted that the transcript was relevant to establish why the prosecutor withdrew one of the counts, why he was discharged in respect of another and why the third count was reformulated. Mr Hamod submitted that without the transcript, his Honour could have no possible understanding as to why one charge had been withdrawn, one dismissed at the committal stage and the remaining charge amended. 166Mr Hamod referred to a number of transcript references which were said to be critical to his case. I will return to the content of some of those references later in this section of the reasons. It is sufficient at this point to note that Mr Hamod contended that those transcript references revealed the following: that he had a series of documents with him on 20 January 1995 which made specific reference to persons whom the prosecution subsequently identified as being real persons and not merely products of his imagination; that the evidence of Mr Wall demonstrated the animus that he, and by inference UBS and its parent company, had against Mr Hamod; and that this animus was to be inferred from the fact that Mr Wall and UBS had urged his arrest and charge rather than speaking with him as to Mr Wall's concerns that the Platinum Certificate might be invalid. Had Mr Wall spoken to him of his concerns, Mr Hamod would have taken an opportunity to speak to persons at UBS, so that UBS could make enquiries of Mr Hamod to determine the validity of the Platinum Certificate. 167Importantly, Mr Hamod submitted that the consequence of the rejection of the transcript resulted in an incomplete inquiry by the trial judge into his causes of action. He contended that had the transcript been admitted, there would have been a verdict in his favour.
Mr Hamod's oral submissions 168Mr Hamod added further arguments in oral submissions on the appeal. Before going to the additional matters, it is essential to understand that Mr Hamod's argument was that the whole of the transcript was relevant and should have been admitted, because a significant portion of it would establish that the prosecution had been maintained maliciously and without reasonable and probable cause (App Tr 19 07.11, 3, 4). Mr Hamod coupled this submission with the assertion that it was a rare thing indeed not to admit the transcript of a failed prosecution into evidence. Reference was made to the decisions of Landini v State of New South Wales [2008] NSWSC 1280 and A v New South Wales where the full transcript was said to have been admitted (App Tr 18.07.11, 31). I will return to those decisions later. Mr Hamod did not argue, in support of this ground of appeal, that his Honour erred either in rejecting or not dealing with his later application to tender portions of the transcript. This is discussed in section (4) (bias). 169In his oral submissions, Mr Hamod referred in particular to the transcripts of the evidence of Detective Sergeant Eastham, Mr Ludowici, Mr Muhlbauer, Detective Riddle and Detective Biaggi as being critical to his case (App Tr 19.07.11, 1, 2). Mr Hamod invited the Court to read the transcript so as to determine its admissibility. There was no objection to this by the respondents. Mr Hamod then emphasised that the most important parts of the transcript were the Crown prosecutor's opening and the evidence of Detective Sergeant Eastham from Nowra police. 170As to the Crown Prosecutor's opening, Mr Hamod submitted that it was apparent from the opening that the prosecution relied on events that the trial judge had described as constituting " a spy novel " or " thriller ". The intent of this submission, as I understand it, was to demonstrate that his Honour had failed to understand, or dismissed as irrelevant, the background events that evidenced the negotiations and steps he had undertaken to authenticate and validate the Platinum Certificate. He contended that these were the very events the prosecution had relied upon in the criminal prosecution (App Tr 19.07.11, 7). 171Mr Hamod submitted that Detective Sergeant Eastham's evidence before the magistrate was critical to the proof of absence of reasonable and probable cause. Mr Hamod's argument was that Detective Sergeant Eastham gave evidence, not only that Mr Hamod attended the Nowra police station and lodged a complaint that he was being threatened by persons over his possession of the Platinum Certificate, but that Detective Green from Nowra police contacted two federal police officers in Mr Hamod's presence. 172Mr Hamod also submitted that the transcript revealed that the Platinum Certificate was taken to Switzerland by Detective Day and another senior police officer. Those officers attended a magistrate's enquiry at which one of the witnesses was Mr Schicker. Mr Hamod complained that the transcript revealed that those officers had failed to undertake any independent enquiries in Switzerland. In particular, they failed to make any enquiries of UBS AG as to the authenticity of the Platinum Certificate (App Tr 19.07.11, 7). Mr Hamod submitted that the absence of direct enquiry was material to the question whether they had reasonable grounds for considering that Mr Hamod did not believe the Platinum Certificate was genuine. This was because Nowra police already had his statement of October 1994 in which he had made the contrary assertion, that is, that the Platinum Certificate was genuine (App Tr 19.07.11, 7-8). Mr Hamod again emphasised that the central part of his case came back to the fact he had lodged a complaint with Nowra police in October 1994. 173Mr Hamod next submitted that the transcript would have revealed that he was not shown many of the documents relating to his authority to deal with the Platinum Certificate during the course of his Record of Interview. He said these documents were in his suitcase, which was in the possession of police at that time. Mr Hamod said that the police possession of his suitcase would have been apparent from the transcript because it was necessary for the magistrate to order the police to return the documents on seven different occasions. The importance of this was said to relate to the formation by the police of a view that Mr Hamod must have known that the Platinum Certificate was bogus. Mr Hamod said that the police should have ensured they had all relevant information before them before forming such view. Mr Hamod submitted that his possession of documents of authority would have cast significant doubt upon the police belief that he knew the Platinum Certificate was bogus. 174Mr Hamod's reference to the magistrate's direction to return the documents on seven different occasions was not accurate. The magistrate ordered the documents to be brought into court on about seven occasions. The transcript indicates that the police had not brought the documents into court because the officer with possession of them was to give evidence of his custody of them. It is apparent that the Crown was concerned with the possible consequences of a break in their possession. 175Mr Hamod next referred to Mr Wall's evidence before the magistrate in which he called Mr Hamod " a snake and a crook ". Mr Hamod said that it would be inferred from the transcript that Mr Wall was " nefarious in his motive in assisting the police ". It was submitted that Mr Wall had " an axe to grind " against Mr Hamod, and that his motive was relevant to the question of malice for the purpose both of the malicious prosecution claim and to the cause of action against UBS in conspiracy (App Tr 19.07.11, 11). 176Mr Hamod also submitted that Mr Wall's evidence before the magistrate revealed that Mr Wall had failed to advise him that according to UBS, the Platinum Certificate was a forgery, or a fake, or bogus. It was submitted that as a matter of rational inference, the police had to have known of Mr Wall's anger towards Mr Hamod. He contended that Mr Wall had no interest in assisting police so as to facilitate the proper application of the criminal law. Mr Hamod added that even if UBS had reported that the Platinum Certificate was false, that did not mean the prosecution could glean that Mr Hamod thereby knew it was false. 177It was a continuing thread of this submission that Mr Wall's conduct was relevant to proof of malice, because he had failed to inform Mr Hamod directly that the Platinum Certificate was bogus upon being informed of that by UBS. The suggestion seemed to be that for Mr Wall to have acted without malice, he would have dealt with Mr Hamod on the basis that each were honest business persons and that each had been duped as to the authenticity of the Platinum Certificate, or, perhaps, that had Mr Wall informed him of his concerns, Mr Hamod would have arranged for UBS to authenticate the Platinum Certificate. 178Mr Hamod submitted that the rational inference to be drawn from the conduct of Mr Wall and UBS was that, from 7 December 1994 up until just prior to Mr Hamod's arrest, there must have been some arrangement, agreement or understanding between them to " get " Mr Hamod. Mr Hamod's case was that Mr Wall and UBS had made representations to the police which were incorrect and untrue, for the sole purpose of trying to have him charged, convicted and gaoled and to thereby obtain possession of the Platinum Certificate, which on Mr Hamod's case was original and valuable (App Tr 19.07.11, 13). 179In response to questions from the bench, counsel for Mr Hamod summarised the bases upon which he said the entirety of the transcript of the prosecution proceedings ought to have been admitted by his Honour as follows: (1) The transcript had multiple relevance (App Tr 19.07.11, 14). (2) A malicious prosecution case cannot be conducted without the whole of the transcript being before the Court, because what is sought to be impugned is the processes of the criminal law that were invoked against the party who seeks to attack the prosecutors. It was submitted that if the transcript was not before the trial judge, including materials that led both to the initiation of the prosecution and its maintenance, the Court must have acted in error (App Tr 19.07.11, 14). (3) The authorities in recent times had not disapproved such a process, that is, of the entirety of the transcript being admissible and admitted (App Tr 19.07.11, 15). (4) If a plaintiff pleads, as Mr Hamod had done, that not only the initiation, but also the maintenance of the proceedings, was without reasonable cause, it was necessary to show, via the transcript how the prosecution evolved and why it " literally fell into a heap " (App Tr 19.07.11, 15-16). (5) At the heart of the tort of malicious prosecution was the fact that the tort arises out of the abuse of the court process. In the case where the assertion is that a plaintiff was dealt with improperly, the record of what occurred in the Court below had to be before the trial judge (App Tr 19.07.11, 17).
The respondents' submissions 180The State submitted that there was no principle of law that required the entirety of the transcript of the criminal prosecution be admitted as evidence in a malicious prosecution case. The applicable principle was that relevant evidence was admissible: Evidence Act 1995, ss 55 and 56. The essence of the submission was that the whole of the transcript was not, or at least not necessarily, relevant and Mr Hamod, in seeking to tender the whole of the transcript, had not contended that the whole was relevant. Rather, his Honour had been asked to adopt a commercial list practice as a matter of convenience, on the basis that he would then be taken to relevant portions of the transcript. There was no error in his Honour refusing to adopt that approach. 181UBS contended that as against it, anything said in the proceedings in the Local Court was protected by the absolute privilege of witness immunity.
Did his Honour err in not admitting the whole of the transcript? 182Before dealing with the specific question whether his Honour erred in not admitting the whole transcript, it is to be noted that in Landini v State of New South Wales evidence of the transcript of the committal proceedings was admitted as evidence in the plaintiff's case (see at [337]). In addition, the transcript of evidence given by various witnesses in other committal proceedings was admitted. Mr Hamod submitted that in A v State of New South Wales the whole of the transcript of the prosecution had been admitted into evidence. However, this could not be ascertained from the report of the decision in that case. 183However, the submission as to what happened in Landini and A v State of New South Wales is not an answer to this ground of appeal. The fact that the whole of the transcript of the criminal proceedings was admitted in a particular case of malicious prosecution does not provide a principled basis for the admission of the whole of the transcript in another case. It is necessary, therefore, to return to the principles governing the admissibility of evidence and the basis upon which Mr Hamod contended that the whole transcript was admissible. 184The overriding principle is that only relevant evidence is admissible: Evidence Act , ss 55 and 56. " Relevance " is defined in s 55 to mean evidence that, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. 185The State argued that the transcript was hearsay and thus inadmissible. UBS also relied upon the hearsay nature of this evidence, insofar as it was relevant as against it: see the Evidence Act , Pt 3.2, Div 1. However, evidence of a previous representation is only hearsay if it is tendered as proof of the contents of the representation. That was not the basis upon which Mr Hamod argued that the transcript ought to have been admitted. Rather, his argument was that the transcript was relevant to the processes in the Local Court: see, in particular, 179. 186However, his Honour's refusal to admit into evidence the whole of the transcript was not in error. Mr Hamod's counsel did not seek to tender the whole transcript on the basis that it was admissible and relevant. Rather, he sought to tender the whole of the transcript as a matter of convenience, adopting a commercial list practice, so that at some stage in the proceedings, reference could be made to parts of it. 187His Honour was not obliged to adopt that practice and problems may well have arisen in the conduct of the proceedings had he done so. In the first instance, had the whole transcript been admitted, it would have become evidence in the case. As evidence in the case, the respondents may have felt compelled to deal with it in some way, either by way of evidence in response or in submissions. His Honour may also have felt some compulsion to deal with all of it in his reasons, particularly once Mr Hamod lost his legal representation. 188However, the real answer to this ground of appeal is that, neither at trial nor on the appeal, did Mr Hamod contend that all the material in the transcript was relevant. As the terms of the Evidence Act , s 55 make clear, only relevant evidence is admissible. His Honour clearly stated that he would consider the admissibility of parts of the transcript as and when there was a specific tender of any particular part thereof. 189Many of the arguments raised by Mr Hamod under this ground of appeal are directed to establishing his challenge to his Honour's dismissal of the false arrest and malicious prosecution claims. As it is necessary to deal with those arguments and the material Mr Hamod identified in his written submissions as establishing his case, this is a convenient place to deal with those parts of the transcript upon which Mr Hamod particularly relied. 190As already indicated, Mr Hamod, in the oral submissions on the appeal, said that the most critical portions of the transcript were the Crown opening and the evidence given by Detective Sergeant Eastham (App Tr 18.07.11, 42). Neither the Crown opening nor Detective Sergeant Eastham's evidence was identified in the transcript references in the written submissions at (129), which were said to be the relevant portions of the transcript. Nonetheless, I propose to deal with the Crown opening and Detective Sergeant Eastham's evidence, as well as the evidence identified in the written submissions.
The Crown opening 191In opening the prosecution case in the Local Court, the Crown prosecutor pointed to a number of features of the case that indicated that Mr Hamod could not have believed the Platinum Certificate was genuine. The Crown referred to a meeting Mr Hamod had with Drs Frey and Hagan in Switzerland, indicating that that they had told Mr Hamod they believed the Platinum Certificate to be false and pointed out to him, amongst other things, spelling errors and the fact that the Certificate had a purported value greater than UBS' reserves. They had told Mr Hamod the Certificate was " monopoly money ". 192The Crown also referred to the first draft Buy/Sell agreement in which cl 6 required an up-front deposit on release of the Platinum Certificate for inspection. The agreement in its apparent final form had schedules completed which included Mr Hamod's companies as beneficiaries of the sale of the Platinum Certificate. Although cl 6 of the first draft had been deleted from the final form, the Crown prosecutor stated that, according to the evidence of Mr Wall, Mr Hamod had orally asked for an up-front payment for production of the original Certificate. The Crown prosecutor said that although, as the potential sale date came closer, Mr Hamod began to insist that the agreement be signed before any monies were paid. The Crown prosecutor pointed out, however, that " running in tandem with that ", Mr Balding negotiated a deposit of $250,000,000 on Mr Hamod's behalf. 193The Crown prosecutor also pointed out that in his Record of Interview, Mr Hamod had given varying and contradictory explanations for various things which he alleged had occurred. In addition, certain allegations he made in the Record of Interview were not supported by other witnesses. One example was Mr Hamod's assertion that Mr Wall told him the Platinum Certificate was genuine and bona fide. Mr Wall would deny that was so. Another example was Mr Hamod's assertion that the purpose of the trip to Sydney on 20 August 1995 was to find out who the buyer was. This would also be denied by Mr Wall, who said the meeting was for the purposes of entering into the Buy/Sell agreement. 194At the conclusion of the opening address, the magistrate asked a number of questions about the charges and then asked: "So then the issues are what representations were made and the knowledge of Mr Hamod." The Crown responded that he assumed so. 195Contrary to Mr Hamod's submission at [170] above, the point of the opening remarks was to demonstrate that Mr Hamod's version of events was unreliable and, indeed, was " a lie ". There was nothing in the Crown address supporting the submission that the Crown relied on the very events that his Honour had related as akin to a " spy novel " or " thriller ". To the extent there were references to persons whom Mr Hamod had identified in his Record of Interview, such as Drs Frey and Hagan, the purpose in so doing was to advance the prosecution case that Mr Hamod had been told the Platinum Certificate was bogus. 196There was nothing in the opening that could have assisted Mr Hamod's case.
Detective Sergeant Eastham's evidence 197Detective Sergeant Eastham gave evidence in the Local Court on 21 March 1997. In his evidence in chief he confirmed that his statement made on 31 January 1995 was true and correct and the statement was admitted into evidence. 198In his statement, Detective Sergeant Eastham recorded that he interviewed Mr Hamod on 26 October 1994 regarding his complaints about threats he said he had received. Mr Hamod told Detective Sergeant Eastham that the persons making the threats had threatened him before, but now they were threatening his family. He identified the persons concerned as being Mr Clarke and Mr O'Dowd, businessmen in Melbourne. Mr Hamod identified the cause of the threats as relating to a business deal he had with them to sell gold certificates on a commission basis. He gave Detective Sergeant Eastham a 13 page statement. Detective Sergeant Eastham told Mr Hamod he would read the statement later. Mr Hamod said: "Look, to cut a long story short I sold certificates to the United States Government for two and a half trillion dollars which entitled me to a commission of eight billion dollars. When Clarke and O'Dowd wouldn't pay me I kept another certificate from the Central Bank of Stockholm, it's worth 67 billion dollars. I've got it in a safety deposit box in a bank in Sydney. I'm going to hang onto it until I get the full commission I'm entitled to. I've got a copy of that certificate too, and a copy of another one I sold." 199Mr Hamod then handed to Detective Sergeant Eastham photocopies of two certificates, one titled " CENTRAL BANK OF STOCKHOLM " on one side and " STOCKHOLM R.B.C. GOLD METAL " on the other. The second was titled " BENNETE BULLION DEPOSIT TRANSACTION " on one side and " CERTIFICATE OF GUARANTEE PLATINUM METAL " on the reverse. 200Detective Sergeant Eastham's statement continued as follows: "[Mr Hamod] said, 'That certificate I'm keeping, it belongs to someone from Interpol and I think he's putting the pressure on Clarke and O'Dowd in Melbourne to get it back for him.' I said, 'Do you know who he is?' [Mr Hamod] said, 'Yes, Mr Wong Chi Mo, he's the head of Interpol for South East Asia. It was when I told them I wouldn't give it back that they started to threaten my family." 201Detective Sergeant Eastham stated that he told Mr Hamod that having regard to the nature of the enquiry, he would have it pursued by the Federal Police. 202In his oral evidence in the Local Court, Detective Sergeant Eastham said that he told Mr Hamod, when interviewing him in October 1994, that he was referring the matter to the Federal Police and that he did so but had not heard back from the Federal Police. He stated that he acted on Mr Hamod's complaint by making an entry in the COPS system for the information of all other persons at the police station. He had also made the other detectives and duty staff aware of the complaint and required them to familiarise themselves with Mr Hamod's address should he require assistance. 203In cross-examination in the Local Court, Detective Sergeant Eastham said that when he spoke with Mr Hamod at the police station in October 1994, Mr Hamod gave him a 13-14 page statement and a copy of two certificates. He said that none of the other documents mentioned in Mr Hamod's 13-14 page statement were given to him. He agreed that he referred the matter to the Federal Police. He said he first rang the Sydney office and then, upon the Sydney office's referral, he rang the international office in Canberra. He said that Mr Hamod was sitting at the desk with him when he made those telephone calls. 204Detective Sergeant Eastham said he did not know whether the Federal Police pursued the matter or not and that once he had handed it over to them, it was a matter for them. He said the matter for his concern was the safety of Mr Hamod's family. In this regard he arranged patrols of his neighbourhood and made police aware of what was going on so they could respond accordingly, should Mr Hamod or his family need assistance. The balance of the cross-examination did not relate to Mr Hamod's possession of the Platinum Certificate. There was nothing else of relevance in his evidence. 205Accordingly, there was nothing in Mr Hamod's oral submissions that supported this ground of appeal. It is thus necessary to deal with the portions of the transcript in the Local Court relied upon in his written submissions.
Mr Muhlbauer 206Mr Muhlbauer was the officer from UBS who attended the meetings set up on 20 January 1995. He described his role as being to take over the file from Mr Ludowici, who had gone on holidays, and to assist in the investigation. It was apparent from his cross-examination that he did not have much recollection of the detail of the events that occurred that day. He remembered a Buy/Sell agreement, but did not remember its terms. He also remembered the figure of $60 B being discussed in the context of the perceived value of the Platinum Certificate, however, he could not remember who came up with that valuation. 207He denied that his role was to " mount the case against Mr Hamod ". He said that his instructions from the police were to confirm from UBS AG that the Platinum Certificate was a forgery, notwithstanding that had already been done earlier by Mr Ludowici. In particular, he said that he was requested by the police to find out details as to why the Platinum Certificate was a forgery. He said he understood that his role was to gain some background of the whole transaction and to sight the original documents. 208He agreed that his role on 20 January 1995 at the meeting was to introduce a buyer, who could not speak English, to Mr Hamod and that he was to translate on the buyer's behalf. He did not recall whether, in the transaction, the buyer was supposed to have seen a copy of the Platinum Certificate before the meeting. He did not recall that being a specific instruction from the police or anyone else. He did not recall saying in the meeting that the buyer had seen the Platinum Certificate and he would want to see the original. 209He remembered a sum of $250 M being discussed in the meeting, but he could not recall whether it was put forward as an offer by either the buyer or UBS. In the specific page of transcript referred to in Mr Hamod's written submission, Mr Muhlbauer was asked whether Mr Hamod at any stage had said that authentication and validation was a first step that had taken place. Mr Muhlbauer responded: "... he did mention that. I'm not sure if those exact words-but he ... did discuss the authentication of the-" 210Mr Muhlbauer remembered discussion as to the money that was to be paid, whether it was to be in US or Australian currency. He said there was also a discussion about an account. He rejected the suggestion that UBS had stated that it had validated the document. He pointed out that right from the start, UBS had said that the document was a forgery.
Detective Sergeant Riddle 211Detective Sergeant Riddle was asked in his cross-examination whether there were any circumstances which would have ruled out Mr Hamod's arrest on 20 January 1995. Detective Sergeant Riddle responded that Detective Senior Constable Day had directed that there were two factors that would lead to Mr Hamod not being arrested: (1) if the Platinum Certificate was genuine and (2) if an up-front fee had not been asked for. 212Detective Sergeant Riddle said that it was his understanding as at 20 January 1995 that the Platinum Certificate was a false document and that an up-front payment had been asked for in the past. He understood that the information had come through Mr Wall. He believed that he had been told this information by Detective Senior Constable Day. 213Detective Sergeant Riddle agreed that he was aware that there was some suggestion that Mr Hamod had gone about a process of authenticating the Platinum Certificate. He said he believed that Mr Hamod was lying about this, " obviously, because it was proven to be false ". He was asked whether he still believed that to be the position, to which he responded, " most certainly ". He was asked what he based his belief on and responded: "... based on what I was told prior to the arrest and based on what Mr Hamod told us in the interview and what enquiries Detective Sergeant Day has made since the arrest date which confirms our previous beliefs or my previous beliefs." 214Detective Sergeant Riddle also said that he was aware that Detective Senior Constable Day went overseas to interview witnesses. He said he had no specific recollection of the conversations that took place on 20 January 1995. He was also questioned about statements made in the Record of Interview and documents seized from Mr Hamod's home, including some Iranian files, and when those documents were returned. 215There was nothing in Mr Muhlbauer or Detective Sergeant Riddle's transcript evidence that would support a case that the police did not have reasonable cause to believe that Mr Hamod was trying to sell the Platinum Certificate, which was a fake.
Dr Frey 216Dr Frey also gave evidence at the committal and the transcript of his evidence was one of the portions of the transcript identified by Mr Hamod in his written submissions on this issue. 217Dr Frey confirmed that he and Dr Hagan had met Mr Hamod in Zurich in the company of other persons and were shown a copy of the Platinum Certificate. He said that when they saw it " we started to laugh because it seemed so fantasy ". He said he recalled that they said something like " there must be a joke ". He said that Dr Hagan said this in German and Dr Frey repeated it in English. He said they pointed out to Mr Hamod and the others at the meeting that the logo was wrong, there were spelling mistakes and they did not know Robert Houner, one of the signatures on the Platinum Certificate. He said that was " an absolutely unknown name in Switzerland ". He did say that Mr Cvahte, who was also at the meeting, said something to the effect that the " wrong things " were for " security to show that ... the document is a real document ". 218He denied that he or Dr Hagan said that they were representing a buyer and denied that was said at the meeting. He said that they did not authenticate the Platinum Certificate. He said that Dr Hagan did not say during the meeting that he represented UBS. He said that to his knowledge, Dr Hagan was not a commissioner of a bank. 219In cross-examination, Dr Frey stated that Dr Hagan was the " economist advisor " in their partnership and he was the " legal " person. He was cross-examined as to whether he had seen bullion certificates issued by UBS and whether he knew whether UBS traded in precious metals. He had no specific knowledge of either of those matters. When questioned how, in those circumstances, he considered the Platinum Certificate a joke, he said because it had the wrong logo on it. In this regard, he said that he and Dr Hagan worked in other matters with UBS AG and had seen a lot of papers from UBS AG, such as guarantees and mortgages. However, he had not seen a bearer certificate for precious metal. He was further cross-examined as to how he could consider the Platinum Certificate to be false. Dr Frey pointed to the stamps on the Certificate and said that he had never seen stamps in the position set out like that on a paper from UBS AG. Dr Frey was asked a number of questions as to whether Mr Hamod had tried to persuade him in any way that the Platinum Certificate was correct. Dr Frey said he did not remember. 220This evidence contradicted Mr Hamod's case that he had been told by Drs Frey and Hagan that the Platinum Certificate was genuine. Indeed, it was evidence that Mr Hamod had been told that the document was a " joke ". The evidence also directly contradicted Mr Hamod's assertions that Drs Frey and Hagan said that they were acting for a buyer, or that they were acting for UBS AG who was a buyer.
Detective Senior Constable Day 221The transcript of Detective Senior Constable Day's evidence is difficult to summarise in a way that provides a cogent overview. However, it is clear that what Mr Hamod's counsel attempted to do in cross-examination in the Local Court was to have Detective Senior Constable Day agree to the underlying thesis of Mr Hamod's case. That thesis was that Mr Hamod had provided information to the police in Nowra in October 1994 and that that should have meant that the police would accept either that the Platinum Certificate was genuine, or that he had a good basis to believe the Platinum Certificate was genuine. 222In an attempt to establish that case, Detective Senior Constable Day was cross-examined about Mr Hamod's report to Nowra police in October 1994; about inquiries Detective Senior Constable Day had made about the people Mr Hamod had referred to in his Record of Interview; about the terms of the Buy/Sell agreement; and about the inquiries he made in Switzerland in relation to the validity of the Platinum Certificate. 223Detective Senior Constable Day said that he did not know of the report to the Nowra police at the time of the arrest, but became aware of it during the course of the Record of Interview. He said that the Fraud Enforcement Agency did not follow up matters of threats of assault reported to local police. 224Detective Senior Constable Day agreed that most of the people Mr Hamod had named in the Record of Interview existed, including Mr O'Dowd, Drs Frey and Hagan, Dr Damanik, Mr Adelman, Mr Kurian (Detective Senior Constable Day indicating in his answer that Mr Kurian had been arrested in relation to bogus bearer bullion certificates) and Dr Khater (who, Detective Senior Constable Day said, was also wanted by the police in Switzerland in relation to matters unconnected with the bullion certificates). He said that from his enquiries, a person by the name of Mrs Maria Pogi (a name that was spelt in various ways by different witnesses including " Marie Bolgia ") was not known to UBS AG. 225Detective Senior Constable Day remembered that there were a number of versions of the Buy/Sell agreement, but he could not remember their terms, although he did remember mention of a sum of $50 M. The document was not in front of Detective Senior Constable Day at this point of the cross-examination. He confirmed that he had not made any inquiries of UBS whilst in Switzerland, a matter relied upon by Mr Hamod as a deficiency in the investigation, sufficient to establish absence of reasonable and probable cause. However, Detective Senior Constable Day explained that he went to Switzerland to provide the Platinum Certificate to Swiss authorities for the purposes of a magistrate's hearing in which Mr Schicker from UBS AG gave evidence as to its validity. He also explained that police officers from Australia can not " just go into another country and start making inquiries ". In an earlier answer, he had referred to the Mutual Assistance arrangements between governments and that the Attorney General's Department had made the necessary arrangements with the Swiss authorities for him to go to Switzerland. 226It must be said at this point that direct inquiries would not have revealed any different information: Mr Schicker's evidence to the Swiss magistrate was that the Platinum Certificate was not a document issued by UBS AG. Detective Senior Constable Day's cross-examination did reveal, however, that he had made intensive and extensive inquiries relating to the matter, both in Australia and overseas, in preparation for the hearing of the charges in the Local Court. The result of those inquiries all pointed in one direction: the Platinum Certificate was not genuine and Mr Hamod had been told by Dr Frey that it was a " joke ". 227Detective Senior Constable Day was also cross-examined as to the state of his knowledge of the matter prior to Mr Hamod's arrest. The cross-examination was directed, although not always successfully, to the period 17 January 1995 up to the point of arrest on 20 January 1995. 228Detective Senior Constable Day said that his first knowledge of the matter was on 17 January 1995, when he was briefed on it. He was asked whether he knew, prior to the arrest, that Mr Hamod was claiming to be acting as a trustee on behalf of the last holder. He said that he could not answer that. He was asked whether he knew that Mr Hamod was claiming money owed to his company by Mr O'Dowd for money lent to Mr O'Dowd and for consultancy fees regarding Europe. Detective Senior Constable Day said that he was told that in the Record of Interview. 229He agreed that he knew, as at the time of the Local Court hearing, that Mr Hamod was claiming a substantial amount of money was owed to him and to his company by Mr O'Dowd and that Mr Hamod said that that was the reason he held the Platinum Certificate as security, as he had been told that in the Record of Interview. There was further cross-examination as to the terms of the Buy/Sell agreement and, in particular, in relation to the payment of $50 M. Counsel pointed out to Detective Senior Constable Day that the payment of $50 M was a condition of being given the Platinum Certificate for the purposes of validation or authentication. He agreed. It should be noted that the magistrate indicated to counsel that she could not see the value of the cross-examination at that point. 230During further cross-examination, Detective Senior Constable Day said that at the time of arrest, he believed that the Platinum Certificate was a forgery. He was asked the basis for his belief at that time and responded that it was correspondence received from UBS AG to UBS. He agreed that UBS had made the initial complaint to the police. 231Detective Senior Constable Day was also questioned as to why he had not confronted Mr Hamod and said, " Look, you're trying to sell a fake certificate. We'll arrest you if you try and do that again ", or " Give us that certificate ". He replied: "Well, this is an investigation into a man who is attempting to sell a $60 billion certificate with a fee attached to it. It's a rather serious - serious offence and one, presumably that the people of New South Wales would want the police to bring to the Courts." 232Mr Hamod's counsel then cross-examined him, suggesting that the primary purpose of his brief was to arrest Mr Hamod, that is, regardless of any criminal conduct. Detective Senior Constable Day answered: "This is a serious offence, and the police are not in the habit of telling people in the middle of committing a serious offence to stop it and go home." 233He was also asked whether he knew that Mr Hamod was acting as a trustee for the last holder and replied: "He gave many variations of his exact involvement with the certificate. Sometimes he had ... (not transcribable) ... on it, sometimes he didn't. Sometimes he was working for Mr O'Dowd, other times he wasn't. Sometimes he had a trusteeship placed on him by the Chinese Government, other times it was the Sukarno Family. There were varying and different formulations of what his relationship was with the certificate, and the machinations of that as far as the people that allegedly owned it." 234Counsel for Mr Hamod then directed attention to the information provided by Mr Hamod in the Record of Interview. Detective Senior Constable Day agreed that during the Record of Interview, he did not have access to the documents seized from Mr Hamod and the others present at the meetings at the Bank at the time of the arrest. He said that he did have two folders of documents, that Mr Hamod did not specifically ask to have access to any particular documents and that had he done so, he would have made arrangements with the police exhibits officer to obtain those documents. He said that Mr Hamod told him about some of the documents, for example, that he had letters from Mr O'Dowd confirming his employment. It should be noted that access to the Local Court transcript was not necessary to establish this. 235The cross-examination did not flow smoothly. There were many misunderstandings as to the time to which the questions were directed. That misunderstanding was, from time to time, shared by the magistrate. However, on a reading of the whole transcript of Detective Senior Constable Day's evidence in the Local Court, it was obvious that at the time of arrest, Detective Senior Constable Day was briefed as to the complaint made by UBS; that UBS had been told by UBS AG the Certificate was a " fantasy "; that follow-up enquiries in relation to the Platinum Certificate had been made of Mr Schicker, who confirmed his initial advice that the Certificate was bogus; that Mr Wall had stated to police that Mr Hamod had demanded an up-front fee to be paid " outside " the contract; and that he either had possession or knew of the contents of a facsimile of 17 January 1995 from Mr Balding, that made provision for the payment of an up-front fee. This is discussed below in section (7) (false arrest). 236There was nothing in Detective Senior Constable Day's cross-examination that demonstrated he did not have reasonable cause to suspect Mr Hamod of having committed the offences with which he was charged. Nor was there anything in Detective Senior Constable Day's cross-examination that established he did not have reasonable and probable cause to initiate and maintain the prosecution.
Mr Wall 237Mr Hamod also directed attention to the cross-examination of Mr Wall in the Local Court proceedings, which ran for over 200 pages. No particular portion of the transcript was identified as being of particular relevance. It is apparent from reading the transcript that the thrust of the cross-examination of Mr Wall was to have him accept that the Platinum Certificate was valid and that Mr Hamod had mentioned in his dealings with Mr Wall the names of various people such as Dr Hagan, Dr Frey, Mr Kurian and others. He was cross-examined as to whether he had made any inquiries in respect of the various names and entities Mr Hamod had referred to. 238The following questions and answers give an indication of much of the tenor of Mr Wall's cross-examination: "Q: Did you make any enquiries whether Tong Shai Investment exists in Hong Kong or not? A: No. ... Q: You didn't see fit, not important or what? A: No, not relevant to me. Q: Not relevant to you that [Mr Hamod] told you he was the owner or the trustee of this certificate. It was not important to you? A: This is a phantom. You're asking me to go to a whole lot of trouble and expense to check out a whole lot of phantoms, that were in my mind phantoms. There is meant to be a lien on these certificates from the World Bank ... and the United Nations and the Federal Reserve and goodness knows what else but nothing turned up in that - - Q: Those certificates are guaranteed by 16 countries, it said it on them, does it not? A: Yes, it says something to that effect. Q: That meant nothing to you? A: No. The only thing that meant anything to me really was the actual certificates themselves. ... Q: Why didn't you tell him so, you would then face to face with him? Why didn't you tell him, look, you're a con artist, piss off? Why didn't you tell him that? A: He'd still go round selling these papers. Still go round putting people - doing what he's doing. Q. Sir, you told me you formed certain opinion in Nowra and you're face to face with this man? A: Yes, I asked the questions, I took the notes, we had our coffee and we left. I wanted to talk to Barry [Page] after the meeting. I made that very clear to you. ... Q: But you have a mandate for heaven's sake. This man had given you authority." 239There was an objection to the last question and Mr Wall was asked why, if he was not interested in proceeding with the transaction, he simply did not tell Mr Hamod the agreement was off. Mr Wall explained that he wanted to discuss it with Mr Page, who had extensive bank experience and that when they discussed it on the way back to Sydney, they had decided to hand the matter over to UBS. Mr Wall also said that at the meeting in Nowra, Mr Hamod had shown him documents purporting to authorise Mr Hamod to deal with the Platinum Certificate. Mr Wall said that he realised he was being shown a lot of rubbish. 240Mr Wall said on more than one occasion in his cross-examination that there was to be a set procedure in respect of the transaction. He said the procedure involved the payment of a fee at the time the Platinum Certificate was handed to a buyer and that if it was authenticated, more monies were to be paid. He maintained that in his understanding, if the document was not authenticated, Mr Hamod was to keep the money that had been paid. He said that it was for this reason that the first payment was referred to as risk money. 241Mr Wall was asked whether it would not have been worthwhile to ask Mr Hamod to hand the original documents to UBS. Mr Wall replied that he had difficulty in talking to Mr Hamod at all after the meeting at Nowra. He said that everything that he had been told previously by Mr Hamod was contradicted in that meeting and that he took the advice of Mr Page and went to UBS, who "c ame back with a clear statement ", after which he left the matter to UBS. In the course of this answer, he said that he had formed the view by then that he was " dealing with a snake ". 242The cross-examination of Mr Wall did elicit that Mr Wall did not trust Mr Hamod. The reference to " dealing with a snake " was indicative of that. However, Mr Wall also gave evidence in cross-examination that it was at the request, first of UBS and then of the police, that he became involved in the operation to have an undercover police officer buy the Platinum Certificate. This cross-examination did not establish bad faith, malice, or an intention to " get " Mr Hamod. Rather, it demonstrated that Mr Wall made an appropriate inquiry of UBS to ascertain the authenticity of the Platinum Certificate. He did so after his suspicions were raised at the meeting in Nowra. Thereafter, he cooperated with the police in their investigation.
Conclusion on the transcript issue 243The transcript references relied upon by Mr Hamod do not establish, as he contended they did, that the prosecution was maintained maliciously and without reasonable cause. Rather, it established the following. When Mr Wall met Mr Hamod in Nowra and was shown documents purporting to establish Mr Hamod's authority to sell the Platinum Certificate, he was concerned that the documents were not authentic. After discussions with Mr Page an experienced person within Utilis, a decision was made to refer the matter to UBS. He expressed his concern that the documents could be used to con other people. When UBS reported back that the Platinum Certificate was bogus, he left the matter with them to take up with the police and indicated he would agree to cooperate with the police in any investigation. 244UBS, for its part, referred the matter to police as soon as it was informed by UBS AG that the document was bogus. It agreed to assist police with an operation designed to trap Mr Hamod. Mr Wall agreed to participate in that operation. Both Mr Wall and Mr Muhlbauer said they took their instructions from the police although it was clear that Mr Wall developed strong feelings towards Mr Hamod, calling him a " snake ", saying that he made him " feel ill " and not wanting to speak to him. 245The police required further enquiries to be undertaken before the meeting set up for 20 January, to ensure the Platinum Certificate was false. Following the arrest, Detective Senior Constable Day undertook extensive inquiries to follow up on the people Mr Hamod had identified in his Record of Interview. Those inquiries revealed that most of the identified people existed. However, information obtained as a result of those enquiries cast considerable doubt on the veracity of Mr Hamod's version of events, or revealed that the persons identified were of dubious character. Dr Frey's evidence was the most telling in refuting Mr Hamod's version of events. The inquiries made through proper channels in relation to the Platinum Certificate itself confirmed that it was not valid or authentic. 246Detective Senior Constable Day was cross-examined as to why he had not checked whether there were any police records in relation to Mr Hamod before his arrest. He said that he was not aware of the COPS entry relating to Mr Hamod's report to Nowra police and no one had brought that to his attention prior to the arrest. Even if that explanation exhibited some oversight or omission in the early stages of the investigation (matters about which he was not cross-examined), the fact is, Detective Senior Constable Day was not aware of the COPS entry. 247That leaves Mr Hamod's submission that the transcript was relevant to establish why, to adopt the language of his oral submissions, the prosecution had " fallen into a heap ". This involves consideration of exchanges between the magistrate and the Crown prosecutor. 248Magistrate Horler raised a number of questions with the Crown Prosecutor relating to the s 300 charge. She expressed doubt that there was a 'production' or 'use' of the Platinum Certificate to a person's detriment or prejudice. The Crown indicated the detriment as being the steps taken to locate an actual buyer for the Platinum Certificate. Magistrate Horler was unimpressed with this explanation. Indeed, she called such alleged detriment " rubbish ". She considered that Mr Wall was out to obtain a huge financial gain, or as her Worship put it, he initially accepted the Platinum Certificate was genuine when he first came into contact with Mr Hamod because " these fantasies of unbelievable sums of money came into his mind and accordingly he did certain things ". 249As to the genuineness of the Platinum Certificate, her Worship, at that stage of the proceedings, appeared to consider that there would be difficulty in accepting the Platinum Certificate was genuine. The following exchange occurred: "[CROWN PROSECUTOR]: ... all the Act requires under s 305C is that a person accepts the [Platinum Certificate] as genuine and because of that acceptance they do something in the course of their duties. Now what the prosecution says is Mr Wall has accepted the [Platinum Certificate] as being genuine, that prompts Mr Wall to act as a merchant banker and make enquiries in an attempt to sell the [Platinum Certificate], and what he has done is he has made enquiries overseas, he's made enquiries in Australia, in an attempt to sell what he believes, up until a later point, is a valid instrument. BENCH: And that is supposed to be an act to his prejudice? [CROWN PROSECUTOR]: Yes your Worship. BENCH: You would have difficulty convincing a jury. ... [CROWN PROSECUTOR]: ... that presentation of the [Platinum Certificate] has a significance on its own, the prosecution says, in that it is meant to bolster the oral statements and it is a presentation, a representation in itself on its own, a representation like without words. BENCH: I still can't see it." 250Later, her Worship stated that she considered s 300 was dealing with " bank notes ... not an instrument of title ". Later, she said: "I find the section very difficult to envisage in the context of this case." Her Worship also said: "... if, in the end [Mr Hamod] is committed for trial on any matter, then obviously the prosecution will have to consider what he is to be indicted for if he is indicted for anything. ... I'm certainly experienced in committing persons for trial and I never do it except on the charges that I think is appropriate unless I clearly express that I'm doing it just for the purpose of clearing the paperwork down here. ... I will consider whether I would only commit him on the one matter or on the two matters and probably I would say because I'm uncomfortable with the 300, I would probably only commit on the other." 251In my opinion, these exchanges do not demonstrate that the case had " fallen into a heap ". Rather, the magistrate took a particular view of the construction of s 300 and indicated she did not consider it extended to a document such as a purported document of title. The prosecutor argued against that construction, but was not successful in doing so. It is trite to say that in legal disputations, including criminal prosecutions, one party is invariably successful and one party is invariably unsuccessful. That does not mean that the unsuccessful party's case was necessarily unarguable, or even wrong. A judge may make errors in the course of a determination. In this matter, the prosecutor advanced reasoned arguments as to why the case fell within s 300. Her Honour did not accept those arguments and placed a different construction on the section. The transcript showed no more than that. 252As to the first s 178BB charge, that was withdrawn before the committal hearing commenced. The transcript, therefore, was of no assistance in relation to the withdrawal of that charge. Although the second s 178BB charge was amended during the committal hearing, that is by no means an unusual occurrence in committal hearings. The change was not so radical as to point to some absence of reasonable and probable cause in the malicious prosecution case. 253In my opinion, this ground of appeal should be rejected.
Section (4): The bias issue: Hamod v State of New South Wales (No 11) [2008] NSWSC 967 254On 17 September 2008, the trial judge refused Mr Hamod's application that his Honour disqualify himself from further hearing the matter upon the basis of apprehended bias: Hamod v State of New South Wales (No 11) [2008] NSWSC 967. Mr Hamod has appealed against his Honour's decision not to recuse or disqualify himself. 255The application was made on the eighteenth day of the hearing. At that time, Mr Hamod was self-represented. He had been self-represented since 8 Sept ember when the hearing of the matter resumed, apart from the legal representation he had on the morning of 8 September, when an application for a stay was made and refused. 256His Honour noted that the bias application was made orally, without notice or other formality. However, that was of no consequence because, as his Honour noted, no formal procedure is required to support a bias disqualification application: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109; Jardiniere v Commonwealth [1998] HCA 22; (1998) 195 CLR 337. 257After setting out the principles that govern the determination of an application that a judge recuse on the grounds of apprehended bias, his Honour summarised the bases upon which Mr Hamod made the application. I will turn to those shortly. It should be noted that in challenging his Honour's ruling, Mr Hamod did not suggest that his Honour failed to identify the correct legal principles. Rather, he contended that his Honour erred in the application of those principles having regard to the manner in which his Honour had been conducting the proceedings.
Legal principles 258As the legal principles upon which his Honour acted are not in contest and are set out succinctly in his judgment, it is convenient to record in these reasons that part of his judgment, so that the argument advanced on appeal can be assessed against the relevant legal principles: "2 The authorities emphasise that any 'reasonable apprehension of bias' must be 'firmly established' before it is appropriate for a judge to disqualify himself or herself from participating in the proceedings. The question of the hypothetical observer's reasonable apprehension falls to be decided against the standards of ordinary judicial practice: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493, 508; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 365. The 'reasonable apprehension' criterion means that neither an expectation about the way the judge is likely to decide the case, nor an express allegation of bias, is necessarily sufficient to generate a reasonable apprehension of partiality: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352. 3 It is a fundamental rule that every judicial tribunal must be, and be seen to be, impartial: Johnson (supra) at 501. Even in the absence of direct personal interest, a judge ought not to hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: see, for example, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. The reference to the fair minded observer has been described as in reality 'no more than a personification of an objective test': see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at par [43] per Basten JA. 4 In deciding the question of 'reasonable apprehension' it is important that judicial officers discharge their duty to sit, and do not accede too readily to suggestions of the appearance of bias. The issue in each case is whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215 at 230. A necessary corollary of this criterion is that a judge ought not to disqualify himself or herself except for proper reason: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. The criterion of 'reasonable apprehension' should not be subverted into a lesser enquiry as to whether it would be 'better' for another judge to hear the case. Applying such an imprecise and impressionistic criterion could encourage a belief that a party can, by making disqualification applications, obtain a hearing before a judge thought to be more favourable: see Re JRL (supra) at 352. 5 The limitation of reasonableness is particularly important in deciding whether a judge's interlocutory rulings, or preliminary views of the likely outcome, indicate bias - irrespective of whether they are expressed at an early or late stage of the proceedings. Such interlocutory rulings or expressions ought not to be regarded as giving rise to a reasonable apprehension of bias unless they indicate a significant level of prejudgment in relation to matters relevant to the final resolution of the proceedings: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100. Generally speaking, because of the nature of the issues and the limited factual investigation that interlocutory proceedings involve, rulings on interlocutory matters are unlikely to justify a reasonable apprehension of bias: Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270. See also Sir Anthony Mason, 'Judicial disqualification for bias or apprehended bias and the problem of appellate review', Constitutional Law & Policy Review , Vol 1, #2 12 August 1998 at 21." 259To these statements I would only add the following. In dealing with an application for apprehended bias, the fair minded lay observer is taken to know of all the relevant circumstances: Vakauta v Kelly (1988) 13 NSWLR 502 at 528, 535-6 (this aspect of the Court of Appeal's decision was not commented upon in the High Court's reversal of its decision). This statement finds confirmation in relatively recent times in the High Court. In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd Callinan J, at [177] 635, observed that the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried. Callinan J also considered it appropriate, when determining whether there was apprehended bias, to have regard to the transcript and reasons for judgment to see whether the cumulative effect was one of bias, or alternatively, whether any statement which may have caused concern was later corrected or modified so as to remove the perception of bias. See also Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11]-[14].
Trial judge's reasons 260His Honour, at [7]-[15] of his judgment, identified the bases upon which Mr Hamod made his application. His Honour considered that at the heart of Mr Hamod's application was his lack of success in various interlocutory applications that had been made in the course of case management prior to the commencement of the hearing in June 2008 and in the course of the hearing proper. The applications in which Mr Hamod had been unsuccessful were identified by his Honour as including: (1) contested applications to amend the statement of claim ([2008] NSWSC 518); (2) an application to vacate the hearing ([2007] NSWSC 1363); (3) an application to strike out a notice to produce issued by the plaintiffs ([2008] NSWSC 125); (4) an application for an order for the production, examination and inspection of the Platinum Certificate which was at the centre of the case ([2007] NSWSC 1366 and 1395); (5) an application to extend the time by which discovery should be given ([2007] NSWSC 1394); and (6) several rulings on evidence and admissibility (see, for example, [2008] NSWSC 611). 261Mr Hamod had submitted to his Honour that these adverse determinations supported the proposition that an objective observer would apprehend that his Honour had brought a less than impartial mind to those determinations: see judgment at [7]. However, the central focus of Mr Hamod's submissions was the refusal of the adjournment application on 29 August 2008. His Honour noted, at [9], that the making of an adverse decision was not of itself sufficient to successfully ground a case of apprehended bias. His Honour recorded, at [10], that the adjournment application had itself been adjourned part-heard, to permit Mr Hamod the opportunity to adduce further evidence. 262His Honour then dealt with the specific complaints Mr Hamod directed to his Honour's conduct of the adjournment application. The first was Mr Hamod's contention that his Honour had indicated, at an early stage of the application, that it was " doomed to fail ". Mr Hamod complained that, if that was so, he had been done a considerable disservice by his Honour permitting the matter to proceed over three days and it would have been better for his Honour to have peremptorily dismissed the application and saved Mr Hamod the trouble of having to deal with it. 263His Honour reviewed the transcript of the adjournment application but was unable to find that he had made any such comment. His Honour considered that even had he made that comment any concern the impartial lay observer may have had would have been allayed as Mr Hamod had been afforded an opportunity to adduce further evidence to support his application: judgment at [11]. 264Mr Hamod's next complaint related to his Honour's termination of his cross-examination of his former solicitor, Mr Diab. Mr Hamod contended his Honour had done so " unfairly and in a way that bespeaks or suggests " that he " had prejudged the matter or ... was otherwise unfair to or apparently biased against " Mr Hamod. His Honour, at [12], set out the relevant part of the transcript of the adjournment application where he had said to Mr Hamod: "None of the questions struck me as going to any of the issues in this case and I don't have the impression that any more questions will be any more relevant." Mr Hamod had responded: "I wish to assure you the questions are leading to the fact that most defendants are disobeying the court orders leading to the fact Mr Diab has withdrawn - and he wouldn't admit negligence but he offered me assistance." His Honour had then informed Mr Hamod that he was of the view that none of the questions he had foreshadowed was likely to be relevant and informed Mr Hamod he was going to bring the cross-examination to an end. 265His Honour, at [13]-[14] , considered that an impartial observer would have had the benefit of listening to the whole of the application for adjournment, including the above exchange in respect of the cross-examination, and would have understood the basis upon which the application was made. His Honour said that such an observer would have heard Mr Hamod's cross-examination of Mr Diab about his allegedly negligent conduct in failing to act in accordance with instructions and in respect of other matters not directly or obviously connected with the application. Such an observer would also have heard his Honour make rulings in Mr Hamod's favour on objections to questions put in cross-examination. Such an observer would also have considered his Honour's judgment on the adjournment application. His Honour concluded, at [14], that: "... a reasonable bystander would have viewed my decision to terminate the cross-examination in the circumstances as they applied at the time as not attended with any perceived absence of impartiality." 266The next matter dealt with by his Honour was Mr Hamod's submission that he had lost confidence in his Honour. At [15], His Honour treated this as a submission that the reasonable lay observer would understand that Mr Hamod had lost confidence in his Honour. 267Harrison J, at [16], then turned to a consideration of Mr Hamod as a self-represented litigant for much of the proceedings. His Honour noted the necessary caution with which a trial judge must proceed where a litigant appears in person and referred to Jae Kyung Lee v Bob Chai-Sang Cha [2008] NSWCA 13. Harrison J noted, at [17], that an impartial observer would have seen considerable latitude extended to Mr Hamod in the course of the proceedings. His Honour also considered that despite Mr Hamod's complaints of unfamiliarity with legal language, court jargon, procedure and the rules of evidence, his case was close to conclusion and his lack of legal representation would not have struck an objective observer as having caused his case to fall at the first hurdle. 268His Honour next referred to Mr Hamod's complaint that he had an imperfect understanding of English. It appears, however, that his Honour did not consider this to be an impediment to the manner in which Mr Hamod had conducted the proceedings. Rather, as he Honour noted, he had drawn attention to Mr Hamod's absence of legal training as an impediment to the proper presentation of his case. 269His Honour expressed his conclusion that the hypothetical fair-minded lay observer identified in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 would not have formed the view " that I have not brought or might not bring an impartial mind to the resolution of the questions I am required to decide ". No doubt having in mind the submission concerning lost confidence, his Honour said that an unfavourable decision was not sufficient to establish an objective apprehension of bias.
Mr Hamod's submissions 270His Honour's summation of the issues that Mr Hamod had advanced on the bias application do not correspond with Mr Hamod's submissions on the appeal. It is thus necessary to deal with these submissions in some detail and with reference to the particular parts of the transcript upon which Mr Hamod relied. 271Mr Hamod identified the matters that led to the bias application being made on 16 September 2008 as commencing at Tr 988 and concluding at Tr 1039. It was submitted that the following matters were raised by him in that portion of the transcript: (1) Mr Hamod wanted to go back into the witness box to give further evidence. He contended that this should have been treated as an application by him to be recalled. Alternatively, he submitted that he never had an opportunity of giving evidence by way of re-examination and this was neither explained to him nor brought to his attention. (2) On 16 September 2008, Mr Hamod had adduced further medical reports from Drs Chee and Goh that he was ill. However, as neither report specifically stated that Mr Hamod was unfit to continue the proceedings, his Honour refused to further adjourn the matter. (3) Mr Hamod again referred to the difficulties he had had with his former solicitors who had served him with a bill for costs of $1.9 M. When the trial judge asked where Mr Hamod's submissions were going, the following exchange occurred: "[Mr Hamod]: My application, your Honour, is that I am not capable to present myself. HIS HONOUR: I've said as much many times. [Mr Hamod]: Well, your Honour, I'm sorry to have to say that I have lost confidence that your Honour will deliver justice ." (emphasis added) (Tr 16.09.08, 991) (4) Although his Honour reminded Mr Hamod that he had wanted the proceedings brought on quickly because of his health, Mr Hamod continued to submit that he had pressing health issues and said that he should be at the doctor's at that very time " to investigate the bleeding ". (5) Mr Hamod informed his Honour that he had depression and post-traumatic stress. (6) Mr Hamod told his Honour that he was " stressing out " and was not representing himself properly and this was causing him more injury and damage. Mr Hamod informed his Honour of a number of instances where this had specifically occurred (Tr 16.09.08, 993). (7) Mr Hamod raised the fact that he had been unsuccessful in having the Local Court transcript admitted into evidence. He informed his Honour that the pro bono advice that he had received from senior counsel was that all that he had to do in the case was to tender the police brief, the Court transcript and the certificate of acquittal and give evidence as to the damage he had suffered (Tr 16.09.08, 994). (8) His Honour had made the following comment in considering Dr Chee's report: "... but many people have depression and paranoia and suffer from post-traumatic stress, but it doesn't prevent them going about their business." (Tr 16.09.08, 997) (9) An attempt had been made to have Dr Chee attend Court for cross-examination. (10) Mr Hamod told his Honour that he had been successful in the means test for Legal Aid and needed time to find new legal representatives. (11) His Honour made the following comment: "So there is a relationship between your health and Legal Aid, is there?" (Tr 16.09.08, 1004) (12) When Mr Hamod had made an inquiry/application to tender the transcript of the lower court hearing, or portions of it, the following exchange had occurred: "[Mr Hamod]: ... am I allowed to tender sections of the court transcript before Magistrate Horler? HIS HONOUR: You sought to do that once and I gave a judgment rejecting it. You sought to do it again and I adhered to my view because no circumstances or legal submission suggested to me that anything had changed." (Tr 16.09.08, 1011-1012) (13) By these comments, his Honour had accused him of engaging in an abuse of process, notwithstanding that his Honour had earlier invited Mr Hamod to tender those portions of the transcript upon which reliance was placed. (14) His Honour had recognised that Mr Hamod had misunderstood the nature of his adjournment application in the manner in which he had cross-examined Mr Diab. 272Mr Hamod submitted that it was obvious from these matters that he was labouring under a disadvantage in the conduct of the proceedings. His Honour's refusal to assist him by granting the adjournment application made on 16 September was consistent with apprehended bias, applying the relevant " lay observer " test.
Consideration of the transcript of proceedings before Harrison J 273In order to determine whether Mr Hamod's complaint of apprehended bias is made out, it is necessary to review the transcript of the proceedings before Harrison J to ascertain the context in which the various matters particularised above occurred. This will involve some repetition of parts of the transcript to which reference has already been made, but that is necessary so as to assess what the objective " lay observer " would have understood and perceived of the judge's conduct during the course of the proceedings. 274At the commencement of the day's hearing on 16 September, Mr Hamod asked if he could " give evidence from the box " (Tr 16.09.08, 988). His Honour explained to Mr Hamod that the matter was proceeding by way of statement and that he had been cross-examined on his statement. His Honour explained that that was why he had been in the witness box earlier in the proceedings. His Honour said that if he wanted to put on more evidence, he would have to put that in a statement. 275Mr Hamod responded that he understood from what he had been told by his Honour the day before, his submissions from the bar table were not evidence. His Honour confirmed that was so and commented that Mr Hamod had given his evidence and was in the course of completing his case. Mr Hamod then said he would like to give his submissions " under oath ". 276His Honour said: "Well, hold on. I'll start again. Yesterday you sought an indulgence at about quarter past 3 because you weren't feeling well ... You were in the course then of tendering a series of documents, some of which were admitted into evidence, some of which were rejected and handed back to you. I got the distinct impression you had further documents to tender. Now, do you or do you not wish to tender any more documents?" (Tr 16.09.08, 989) 277Mr Hamod stated he wished first to make an application. His Honour asked him to identify the application. Mr Hamod said that his depression was hampering him from properly presenting his case. He referred in particular to his attempt the previous day to tender the transcript and his Honour's response that he had already dealt with that. Mr Hamod said that he had been unable to properly articulate the reason why the transcript should be admitted into evidence and that he was " misrepresenting " himself " in a big way " (Tr 16.09.08, 989). 278It was at that point that Mr Hamod said he had a medical report from Dr Chee dated 13 September and asked if he may tender it. Mr Hamod also had an updated report from his general practitioner, Dr Goh. 279In the report of 13 September, Dr Chee stated: "Mr Hamod has been a patient of mine since 04.06.1998. I have previously written several psychiatric reports of him including those dated 18.08.07, 07.11.06, 23.06.06 and 30.05.08. Since my last report, I have seen Mr Hamod again on 11.08.08. Psychiatric Symptoms When I last reviewed him, he appeared to continue to suffer from symptoms of depression and lethargy. He had been trying to review documents in preparation for his Court battle but after 5 days found that he could no longer cope with this by himself. He reported that [the respondents] were supposed to file their evidence by the end of February, but he continued to receive their evidence in drips and drabs. He feels this is a deliberate ploy to test his endurance and increase his frustration. Sometimes they serve their statements in draft form. He had to seek the help of a legal counsel to assist him. He continued to express feelings of disillusionment, betrayal and frustration. He has limited capacity to concentrate to review the evidence he is preparing. Opinion My opinion remains unchanged from that of my previous report. Mr Hamod continues to suffer from recurrent Major Depression and Chronic Post Traumatic Stress Disorder." 280His Honour sought clarification as to whether Mr Hamod's application was to tender the medical reports or whether there was another application. Mr Hamod said his application was to tender the reports (Tr 16.09.08, 989). There are then pages of transcript involving discussion about Mr Hamod's medical condition and attempts by the trial judge to have Mr Hamod identify the application he was making. 281During the course of that discussion that Mr Hamod stated that he would " be going to the Court of Appeal on mistrial " (Tr 16.09.08, 992). His Honour pointed out to him that the first trial had not finished. Mr Hamod responded: "Well, your Honour, I've lost confidence so how can I come to Court and carry on?" That was the first indication that Mr Hamod was making an application on the basis of bias. 282His Honour said, " Mr Hamod, I think you may have just missed something ". His Honour pointed out to Mr Hamod that he had urged many times that the proceedings be brought on quickly because of his health; that the proceedings had been expedited and the respondents had responded, so that the matter could be heard quickly. His Honour pointed out to Mr Hamod that he was now making a further application for an adjournment and this application was being made on the same basis as he had sought expedition, namely, his health (Tr 16.09.08, 992). Mr Hamod again told his Honour that he was unable to properly represent himself. 283In the discussion that followed between the trial judge, Mr Hamod and counsel for the respondents, the question again arose as to what application Mr Hamod was making. In response to a statement by his Honour, Mr Hamod stated that his first application was for an adjournment on account of his health (Tr 16.09.08, 995). His Honour indicated that he also thought that Mr Hamod may be making an application that he disqualify himself from further hearing the matter. Mr Hamod said he had not made that application (Tr 16.09.08, 993). 284It is necessary at this point to refer back to the eighth matter of which Mr Hamod complained, namely, his Honour's comment that " many people have paranoia ". If that was all that was said, it is possible that it could be interpreted as his Honour not taking Mr Hamod's complaint of ill health seriously, or not appreciating the serious and adverse effect his ill health was having on him. However, his Honour's statement was made in the context of a much larger discussion relating to the absence, in Dr Chee's report, of any statement that Mr Hamod was not able to attend to the conduct of the proceedings because of ill health. His Honour's comment followed on the State's application for Dr Chee to be cross-examined. 285The context in which his Honour's remark was made was as follows: "HIS HONOUR: Mr Hamod, I made reference, and Mr Maconachie has made reference as well, to the fact that the letter from Dr Chee does not address issues that are critical to your present application. [Mr Hamod]: Depression, your Honour. Paranoia. HIS HONOUR: Yes, but many people have depression and paranoia and suffer from post-traumatic stress, but it doesn't prevent them going about their business. We don't know if that's you. All I'm suggesting is that Dr Chee's report does not address, in terms, your ability to come to Court and conduct the case on your behalf. It may be that some inference arises from what he said but, because you have made a number of references through these proceedings at various times and for varying purposes to the state of your health, sometimes because you had to get the case on, on other occasions because you wanted the case to stop, it may well be very helpful if Mr Maconachie's suggestion were given effect, if possible, and we could hear from the horse's mouth, as it were, what the true state of your health and what relationship it has to the continuation of the proceedings. Mr Speakman's frustration is that this is happening a lot. My frustration is that I'm unable to have these proceedings progress in a timely way without appearing to trample on one or other rights of the parties in managing the competing interests. It may be possible, if Dr Chee were available at some period today, we could arrange a telephone hook-up where he could give evidence here without having to come, if that's not unsuitable to the parties. That might save a lot of time. Do you have objection to those who instruct Mr Maconachie making a telephone call to Dr Chee's rooms to see what his availability is today, either to come along or perhaps give us the benefit of his views by telephone hook-up? [Mr Hamod]: No, I have no objection." (Tr 16.09.08, 997) 286The discussion between his Honour and Mr Hamod continued over further pages of transcript, during the course of which Dr Chee's report of 13 September 2008 and earlier reports of 22 June 2006 and 30 May 2008 were added, by consent, to Exhibit AAAN (Tr 16.09.08, 1002). 287Notwithstanding his earlier objection to the tender of Dr Chee's report, Senior Counsel for the State, Mr Maconachie, indicated that it might be better to deal with the health issue that Mr Hamod had raised and indicated he required Dr Chee for cross-examination. That could not be arranged, either by having Dr Chee attend in person or by cross-examination over the telephone. 288Following that, Mr Hamod informed his Honour that, since his adjournment application had been declined on 29 August 2008, he had met with Legal Aid and ascertained that Legal Aid was available for malicious prosecution and false imprisonment cases. He said that he had passed the Legal Aid means test and was now required to find legal representation. Mr Hamod asked the trial judge to adjourn the matter so as to give him time to engage a solicitor and barrister (Tr 16.09.08, 1001). 289At that point, his Honour directed Mr Hamod's attention to the application being made, namely, an adjournment for health reasons. His Honour commented that Mr Hamod had moved to a question of the likelihood of obtaining Legal Aid. He pointed out to Mr Hamod that there was no evidence about that and said: "We need to concentrate on one thing at a time." (Tr 16.09.08, 1002) 290There was further discussion about the medical evidence, including Mr Hamod's offer to have his general practitioner, Dr Goh, available for cross-examination. However, the respondents indicated that they did not require Dr Goh for that purpose. Once the position as to cross-examination of the doctors had been clarified, his Honour stated: "Your application then is, because of the material referred to in the medical reports that have been tendered, you want an adjournment of these proceedings? [Mr Hamod]: Yes, your Honour. HIS HONOUR: For how long are you seeking that adjournment and what is your proposal in the period of the adjournment concerning the further conduct of these proceedings or anything relating to your health? [Mr Hamod]: What I propose to do is that I said now that I know I qualify for Legal Aid, second adjournment to go back to Legal Aid, file the form, get it approved as soon as possible, get solicitors and barristers to look at the case." (Tr 16.09.08, 1003-1004) 291His Honour acknowledged that Mr Hamod was seeking legal representation, but again asked him to identify for how long he was seeking an adjournment: "... in relation to anything that is related to your health and what do you propose to do in the period of that adjournment in relation to that issue?" (Tr 16.09.08, 1004) 292Mr Hamod responded: "I understand the question. I am seeking an adjournment for four weeks. During that four weeks, immediately I go to Legal Aid - they have told me verbally I qualify - put the documents, get it approved and get the barristers and solicitors to look at the case and I put it before your Honour. That's my plan. And that will allow me to go and seek the medical help that I need - including possibly going to hospital." (Tr 16.09.08, 1004) 293His Honour asked whether Mr Hamod had any plans more specifically related to his health than those he had just outlined. Mr Hamod replied: "My health - I need to be in hospital actually last month to check on the lymph of the lungs which are swollen. CAT scan shows that two lymph is swollen and the doctor wants to look in the lymph to find out, is it poison or is it cancer? And I have been deferring and deferring because I have been coming to court. Now, I am starting to cough a lot, I am starting to experience - that's why I wanted to go in the box this morning to give evidence - I am starting blowing blood from my nose, loss of hearing yesterday, noise in my ear now. They got to also put me in the hospital to check on the heart stent because of irregular heart beats, what is causing irregular heart beats. Is it from the lung or stent closing up? That's what I intend to do immediately after I get the Legal Aid through." (Tr 16.09.08, 1004) 294It was at that point that his Honour made the comment of which complaint is made, namely: "So there is a relationship between your health and Legal Aid, is there?" 295Mr Hamod replied: "Legal Aid is approved, I am going to get the legal aid, so I can get the solicitor start looking at the case and then I have to go to hospital or go and seek medical help straight away. That's my plan, before I go to hospital, secure the solicitor, secure Legal Aid and get them to have a look at the matter, then I go to hospital. That's what I intend to do." (Tr 16.09.08, 1004) 296The transcript recorded that his Honour refused Mr Hamod's application for an adjournment. There is no appeal against his Honour's ruling on that application. 297The transcript next recorded that Mr Hamod referred to Dr Chee's report and that his Honour was the person who had " mentioned paranoia ". Mr Hamod said that his paranoia on the day before had been so bad he could not sleep the previous night. Mr Hamod continued: "... because I am now convinced, or convinced myself, of the fact that you are not hearing me properly and I lost confidence, your Honour, in your ability to hear me properly." (Tr 16.09.08, 1004-1005) 298His Honour noted that Mr Hamod's remarks to that effect had already been recorded. Mr Hamod responded that he would have to " apply for a mistrial " and again referred to the difficulties he was having in being able to arrange medical examinations that he needed, whilst being " buried " in the court proceedings. He said: "That, your Honour, should be enough for you to consider at least an adjournment that I get Dr Goh here for cross-examination or to give further evidence on my condition." (Tr 16.09.08, 1005) 299His Honour indicated to Mr Hamod that he should take such course as he decided to take or was advised to take. Mr Hamod reiterated that he had " lost confidence ". His Honour then invited Mr Hamod to continue with what was left over from the previous day's hearing, namely, the tender of six folders of documents. Mr Hamod complained of confusion, stating that he did not " know where I am today because I hardly had any sleep last night " (Tr 16.09.08, 1005). 300His Honour again directed Mr Hamod to where the proceedings had been left the previous day. Mr Hamod responded by informing his Honour that he sought to tender those documents. There then followed discussion regarding the six folders of documents, to which objection had been taken by UBS. A significant part of the objection was that many of the documents were already in evidence. His Honour informed Mr Hamod that if he wished to tender some portions of the folders in a discrete way, those documents would be received into evidence if and when Mr Hamod did so (Tr 16.09.06, 1011). 301Mr Hamod then raised a different matter. He complained that he had not been provided with the original duty books of certain of the police officers. Senior counsel for the State informed his Honour that the duty books were available at any time Mr Hamod wanted to see them and also reminded his Honour that the State had not challenged the tender of the duty books of any New South Wales police officer. Mr Hamod indicated that he could not go through that material on that day. 302The following exchange then occurred: "[Mr Hamod]: ... am I allowed to tender sections of the court transcript before Magistrate Horler? HIS HONOUR: You sought to do that once and I gave a judgment rejecting it. You sought to do it again and I adhered to my view because no circumstances or legal submission suggested to me that anything had changed. It's getting close to an abuse of the processes of the court if you continue to cavil with a ruling I've made. If my ruling is wrong, that will have consequences for me or at least for the proceedings and for everyone involved in it in due course, but - [Mr Hamod]: That's what I was worried about, me being abuse of process. On that basis I seek to finish my court proceeding here and put in on record that I will appeal the decision and ask you to disqualify yourself. MACONACHIE: Can I say this in the hope that it might assist your Honour and Mr Hamod. If Mr Hamod identifies discrete parts of ... the transcript of the proceedings before Magistrate Horler - we will give careful consideration to whether or not we will consent to those portions going in. That might assist Mr Hamod and it might assist your Honour. HIS HONOUR: You've steadfastly objected to the whole of it so far. MACONACHIE: Absolutely, but if there are discrete portions of it which can be identified and which might arguably be relevant - some portion or an admission by someone for whom we are said to be vicariously liable - of course we'll take a different view and we'll give it very careful consideration to try and assist. HIS HONOUR: Mr Hamod has once again made reference to me disqualifying myself further from hearing this matter. Is that your application? [Mr Hamod]: Yes, your Honour. I lost confidence. That's it. I really lost confidence. You can't force yourself to accept. I lost confidence. HIS HONOUR: You don't have to explain yourself. You've made that application. That will have to be dealt with, gentlemen, will it? MACONACHIE: Of course. And can I apologise for referring to that matter of the transcript in the middle of your Honour receiving that application. I'm sorry I was in discussion, as it were. HIS HONOUR: No. MACONACHIE: We oppose the application. It should be dealt with now. SPEAKMAN: I oppose the application. Whether it's completely dealt with now, I don't yet have a position on it, but Mr Hamod should now articulate precisely what is the basis for the application. HIS HONOUR: Back to you, Mr Hamod. [Mr Hamod]: Yes, your Honour. Am I allowed to put the reasons for my application? HIS HONOUR: Absolutely." (Tr 16.09.08, 1011-1012) 303Mr Hamod addressed his Honour for just over a further three pages of transcript (Tr 16.09.08, 1013-1016). His Honour interrupted Mr Hamod to state the tests that applied to an application for disqualification for apprehended bias. His Honour said: "Mr Hamod, I'm hesitant to interrupt you, but in an application like this you should address the proposition that some independent observer, detached from any involvement in these proceedings, sitting in the back of the court, might have taken the view, in the way I've conducted this case or dealt with you or your interests, gave the appearance that I was not - to use lay terms - giving you a fair go. Some independent objective observer might think that I was demonstrating some bias or less than fair approach to your submissions or delivering judgments without giving you a fair hearing or not providing reasons or providing reasons that were plainly unavailable or a combination of these things. I'm not certain what is the basis yet of your application that I should disqualify myself other than a general allegation of some unfairness on my part towards you." (Tr 16.09.08, 1016) 304Mr Hamod responded that he was " leading to the point ". There followed a number of further short exchanges in which his Honour indicated to Mr Hamod that Mr Hamod did not have to " mince [his] words " and that if he had something critical to say of his Honour, it was in Mr Hamod's interests to say it clearly (Tr 16.09.08, 1017). Mr Hamod continued to address the trial judge. After many more transcript pages of address, Mr Hamod complained that it was his Honour's refusal of the adjournment application that day, that is, 16 September 2008, that " really sparked or really caused me to lose confidence in your Honour to be the judge of the matter " (Tr 16.09.08, 1026). 305Mr Hamod then said he believed it was the shortness of his examination of Mr Diab that had deprived him of an opportunity to demonstrate that the statement of claim should have been amended twelve months previously, that is, in May 2007. His Honour reminded Mr Hamod that Mr Diab had been cross-examined on the adjournment application decided by his Honour on 29 August 2008. Mr Hamod complained that he did not get the opportunity to cross-examine Mr Diab to ascertain what he had done with the money he had paid, namely, $40,000, for the purposes of having Mr McKeand SC amend the statement of claim. He said he did not get to that point because the cross-examination was terminated by his Honour before he had finished. 306The following exchange then occurred: "HIS HONOUR: I dismissed your cross-examination for the very reason that that was the topic you were directing your attention to when the application that was before me was an application by you, in effect, saying that you could not continue without legal representation that you could afford for as the direct result of the actions of the [State], in effect, not paying you $272,000 that they owed you. I formed the view that the amendment to the Statement of Claim, your solicitors alleged negligence or failure to follow your instructions or the question of whether or not they had misappropriated monies or otherwise breached terms of their costs agreement with you were beside the point. In exercising my discretion at that time, I said in as many words that your cross-examination was beside the issue and I was going to terminate it for that reason. [Mr Hamod]: Your Honour, I was going to show your Honour that the damage that was caused to me in my attempt to control the damage, my attempts to control the damage, I was trying to show you that [I] have suffered damages as a result of his negligent acts. HIS HONOUR: That only, with great respect, underscores what I have just said to you, that you were wholly misunderstanding the nature of your application and the type of cross-examination that you should have been engaging in in support of it." (Tr 16.09.08, 1027) 307There were further submissions by Mr Hamod, following which his Honour informed him that if the bias application succeeded and his Honour disqualified himself, the whole of the proceedings would have to start again. This was explained to Mr Hamod on two further occasions (Tr 16.09.08, 1028).
Has the case of apprehended bias been made out? 308Much of Mr Hamod's argument in respect of this ground of appeal focused on his position as an unrepresented litigant trying to manage and marshal evidence and deal with procedural issues, in circumstances where he was complaining of poor health. It is necessary, therefore, to first consider the obligation of a trial judge in conducting a trial where a party does not have legal representation.
Courts' duty to unrepresented litigants 309Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that: "A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'." 310However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53]. 311Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154. 312Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914. 313The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated: "But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant." 314Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA. 315There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality: "A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6." 316The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.
Consideration of Mr Hamod's submissions 317Mr Hamod submitted that the trial judge's conduct in dismissing the bias application defied explanation, given that the scales of fairness were weighed very heavily against him. He pointed out that he had no legal representation, whereas the State and UBS were represented by highly experienced senior and junior counsel and instructing solicitors. Mr Hamod submitted that he should not be criticised for mixing up his applications and that it was apparent he was labouring under an obvious disadvantage. He contended that the trial judge's refusal to assist him by granting the relief he sought, especially the adjournment on 16 September, on medical grounds, and so as to enable him to obtain legal representation, led to the conclusion that it was conduct consistent with apprehended bias. 318The particular complaints made by Mr Hamod may be summarised as follows: (1) the dismissal of the adjournment application on 17 September 2008, without paying due regard to the severity of the consequences of the fact that Mr Hamod had sought and was granted legal aid and needed urgent replacement of his legal representation; (2) the failure to have regard to the fact that Mr Hamod was ill; (3) the failure to have regard to the fact that Mr Hamod was not able to articulate his case. This was perhaps best demonstrated when he had attempted to tender parts of the transcript of the proceedings in the Local Court; (4) depriving Mr Hamod of the right of giving further evidence about his case, especially in depriving him of an opportunity of conducting an exercise of re-examination; and (5) alternatively to (4), a failure to inform Mr Hamod of his right of re-examination, together with the right to recall himself and give evidence. 319In dealing with Mr Hamod's submissions, the first thing to note is that at various times throughout the proceedings, including in relation to the bias application, his Honour explained to Mr Hamod the relevant principles of law and where Mr Hamod was up to in his case, so that he could focus on that. These were appropriate interventions by his Honour to assist Mr Hamod as an unrepresented litigant. His Honour also constrained cross-examination of Mr Diab during the adjournment application. That cannot found a case of bias of any sort. His Honour had an obligation to conduct the trial fairly for all parties. This included an obligation to ensure that evidentiary issues, including cross-examination, were relevant to issues in the proceedings. His Honour indicated at the time the adjournment application was heard and determined in August, he had not been concerned with allegations of negligence against Mr Diab. 320Mr Hamod's contention that his Honour failed to have regard to his health is not correct. His Honour admitted into evidence the medical reports that Mr Hamod said demonstrated the extent of his ill-health. Mr Hamod had undoubted health problems, as his Honour recognised. The difficulty, however, was that medical evidence indicated that the stress of the proceedings was not assisting Mr Hamod's health problems and that the sooner they were concluded the better. His Honour was prepared to have Dr Chee cross-examined, by telephone if necessary. It is true that he did not give Mr Hamod an opportunity to see if Dr Goh could give evidence. However, Mr Hamod did not direct attention to evidence in Dr Goh's report that indicated he could not continue with the proceedings at that point. In those circumstances, when the respondents did not require Dr Goh for cross-examination, it was reasonable for his Honour to require the proceedings to continue. 321It is also apparent from the exchanges between his Honour and Mr Hamod that his Honour was concerned that Mr Hamod focus on one argument or one application at a time. That was appropriate for the orderly conduct of the proceedings. His Honour's comments of which Mr Hamod complained, relating to " paranoia " and the link between the application for legal aid and his health, were not comments that a reasonable bystander would consider gave the appearance of bias. Rather, his Honour was pointing out that paranoia was not necessarily equivalent to an inability to engage in matters relating to a person's affairs. The comment relating to Mr Hamod's health and legal aid was, in the context in which it was said, an attempt by his Honour to have Mr Hamod deal with one topic at a time. 322The complaints that his Honour failed in his duty to an unrepresented litigant in not advising Mr Hamod of his right of re-examination or in refusing Mr Hamod's request to give further evidence need to be placed in context and require an examination of the transcript, both at where the proceedings were on 19-20 June 2008, and what happened upon their resumption on 8 September 2008. 323On 19 June 2008, towards the close of that day's proceedings, senior counsel for the State indicated to his Honour that he had nearly finished his cross-examination of Mr Hamod, but asked whether he could leave open the question of any further cross-examination until the following morning. He indicated to his Honour that if there was to be any further cross-examination, it would be short. Senior counsel for UBS also indicated to his Honour that his cross-examination would be short. He also said that he had no objection to Mr Hamod's senior counsel conferring with him overnight in relation to any re-examination. Senior counsel for the State agreed to this. However, senior counsel for Mr Hamod informed his Honour that he would not be able to prepare a re-examination overnight. He said given Mr Hamod's lengthy cross-examination, which had taken over a week, preparation for re-examination would be a lengthy process. He indicated that if the cross-examination finished the following day, he might seek to have Mr Hamod's re-examination deferred. 324There was some further cross-examination of Mr Hamod on 20 June 2008. Mr Hamod's senior counsel informed his Honour that he wanted to postpone his re-examination. His Honour informed Mr Hamod that it might be necessary for him to return to the witness box on a later occasion if there were some matters that his senior counsel wished to cover in re-examination. Both the State and UBS again stated that there was no objection to Mr Hamod's senior counsel consulting with him for the purposes of re-examination. 325At 10:37 am Mr Lymbery was called to give evidence. Objections to his statement were dealt with and he was then cross-examined by both the State and UBS. There was no re-examination. Senior counsel for Mr Hamod indicated to his Honour that he was not in a position to call further witnesses that day. His Honour then dealt with objections to the statement of one of those witnesses. Documents were also tendered and the matter was adjourned part-heard to Monday, 8 September 2008. 326It will be recalled that in the interim, on 28 August 2008, his Honour refused an application to adjourn the proceedings. On 8 September 2008, Mr Baran appeared for Mr Hamod and sought a stay of the proceedings so that Mr Hamod could seek leave to file an application for leave to appeal from his Honour's refusal of the adjournment. The application was refused. Counsel was excused. His Honour then asked Mr Hamod if he was going to take part in the proceedings further. Mr Hamod said he was very sick. He said that he was hopeful that he would have solicitors and barristers to represent him by the coming Friday or Saturday. He said that he had been advised that a World Foundation was going to fund him. He said he was expecting their representatives to arrive from Europe on Saturday with a view to signing an agreement over the weekend so that he would have a solicitor and barrister the following week. His Honour asked Mr Hamod the name of the World Foundation but Mr Hamod said he was not allowed to reveal that name. He said that he had met with representatives of the Foundation the previous Thursday. 327Mr Hamod also asked his Honour to excuse him for the rest of the day so that he could see his general practitioner. His Honour informed Mr Hamod that he was not going to excuse him or order him to stay, but that he could stay or go as he pleased. His Honour suggested that Mr Hamod be seated and that perhaps counsel for the State and UBS would inform him what was likely to happen if he was not present because, as his Honour pointed out, " I don't think your case has finished yet ... your case is not closed ". Mr Hamod said his case was not closed and that he still had to tender the exhibits. When Mr Hamod did return to the case, his Honour reminded him where he was at in relation to his case, namely that he was tendering documents. 328Mr Hamod did seek to give further evidence. However, as the transcript to which I have referred indicated, it appeared that the evidence he wanted to give related to his health. In any event, his Honour reminded Mr Hamod that he had directed that evidence was to be in statement form and advised him that if he wanted to adduce further evidence, he would have to do it by way of statement in the first instance. The issue of re-examination did not emerge in discussion after Mr McKeand SC left the proceedings. However, his Honour was alive to the fact that Mr Hamod had counsel appear for him on 8 September and had had legal advice from time to time. It was reasonable for his Honour not to enquire whether Mr Hamod wanted to give evidence by way of re-examination. 329Insofar as the adjournment application on 17 September was based on Mr Hamod's wish to have legal representation, two things should be noted. The first was that on 8 September, Mr Hamod had contended he had been advised that a World Foundation was going to fund him. Mr Hamod refused to disclose the name of the Foundation. If it existed, it appears the funding did not come to fruition. Insofar as the application for Legal Aid was concerned, the position was that Mr Hamod had passed the means test. Legal Aid had not been granted at that time. Had his Honour granted an adjournment, it remained unknown how long it might take for a decision to be made as to whether Legal Aid would be granted. Given the stage of the case at that time and the fact that the respondents had arranged witnesses, some from overseas, a reasonable lay observer would not have an apprehension that his Honour's refusal to grant an adjournment meant he was biased against Mr Hamod. 330Reference should be made to one further matter. In the course of his submissions on 16 September 2008, Mr Hamod asked if he was allowed to tender sections of the transcript of the Local Court. His Honour responded to that question by indicating to Mr Hamod that he was cavilling with a ruling he had made in that regard twice previously. That was not accurate. His Honour's ruling had been in relation to the tender of the whole of the transcript. An indication by the State at that point, that it would consider its position if discrete portions of the transcript were identified, appears to have been ignored by his Honour. Mr Hamod's question relating to sections of the transcript was then overtaken by further exchanges in relation to the bias application. 331A reading of the trial transcript indicates that his Honour's response in relation to the tender of the transcript was due to his concern to keep Mr Hamod focused on one argument at a time. This lack of focus had been apparent on several occasions, with various applications tending to tumble into each other.
Conclusion on bias issue 332Whilst I consider his Honour misunderstood the application being made in respect of the transcript, I do not consider that would give the reasonable lay observer an apprehension of bias on the part of his Honour. A reading of the transcript at this point suggests some irritation on his Honour's part, but he was dealing with a difficult trial. Irritation is not, of itself, an indication of bias, nor does it satisfy the test for apprehended bias. 333I would reject this ground of appeal.
Section (5): The cross-examination issue: grounds 18 and 19
Ground 18: His Honour erred in criticising Mr Hamod for failing to cross-examine the respondents' witnesses in circumstances where his Honour had erroneously refused to admit the transcript of the proceedings before her Honour Magistrate Horler which Mr Hamod contends contained admissions which his Honour had to take into account
Ground 19: His Honour erred in determining that the failure by Mr Hamod to cross-examine the respondents' witnesses resulted in a conclusion that Mr Hamod accepted such evidence as being truthful
Mr Hamod's submissions 334Mr Hamod contended that his Honour erred in criticising him for failing to cross-examine witnesses in circumstances where he had wrongly refused to admit the whole of the transcript of the proceedings in the Local Court. The thrust of this ground of appeal was that the transcript contained admissions by various witnesses in cross-examination that were critical to his case (ground 18). Mr Hamod further contended that his Honour erred in finding that his failure to cross-examine witnesses meant that Mr Hamod had accepted the evidence of the respondents' witnesses as truthful (ground 19). 335In the course of argument on the appeal, Mr Hamod's counsel was invited to address the issues raised by these two grounds, on an assumption that this Court found against Mr Hamod on the adjournment and/or transcript issues. This invitation was not taken up. Rather, the focus of the submissions remained riveted to the alleged errors of the trial judge in refusing the adjournment application and in refusing to admit the transcript. As events have turned out, I have concluded that there was no error in his Honour's refusal of the adjournment and in not admitting the whole of the transcript. Accordingly, grounds 18 and 19 have to be considered in that light.
Legal principles 336The trial judge, in dealing with Mr Hamod's failure to require the witnesses for cross-examination, referred in some detail to this Court's decision in Ali v Nationwide News Pty Ltd [2008] NSWCA 183. As that case recognised, the jurisprudence in this area is well settled. Prima facie, a court will accept the unchallenged evidence of a witness, including an expert witness: see Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 where Mahoney JA stated that if a party fails to cross-examine a witness, that party cannot, in address, submit to the court that the evidence not be accepted. The principle is that the party who fails to cross-examine a witness is taken to have accepted that evidence: see Knight v Maclean [2002] NSWCA 314 (at [34]) per Heydon JA (Meagher JA and Young CJ in Eq agreeing); Seymour v ABC ; Reid v Kerr (1974) 9 SASR 367 at 375. 337However, the principle is not absolute. In Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Hope and Glass JJA said, at 426: "As Browne v Dunn shows, it may be wrong in many cases for a party to suggest that the other party's evidence should not be accepted, if there has been no relevant cross-examination; and , if a tribunal of fact rejects that evidence in those circumstances, the result may be a wrong finding of fact, or, to use other language, an unreasonable ... or even a perverse finding of fact." (emphasis added) 338Thus, even if evidence is unchallenged, a party may be able to demonstrate that the evidence is inherently illogical or unreliable, or that the evidence is based on an incorrect or incomplete history or upon unproven assumptions. These last two factors are particularly relevant where expert evidence is not challenged in cross-examination. However, unless the evidence is shown to be defective in some way, there is usually no reason not to accept evidence that is unchallenged: see M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 especially at [21]. 339There is another layer to this jurisprudence. Even if unchallenged evidence is not shown to be defective, a court is not bound to accept it if the opposing party calls evidence of a substantial nature which contradicts it: see Bulstrade v Trimble [1970] VR 840 at 849; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302. In HSH Hotels v Multiplex Constructions , Tobias JA (Mason P and Hodgson JA agreeing) concluded, at [87]: "The critical issue where there is no cross examination of a particular witness, including an expert witness, is whether, as in the present case, there is a credible body of evidence of a substantial character in direct contradiction of the non cross examined evidence." These principles were affirmed in Ali v Nationwide News Pty Ltd. 340The attention of counsel was also drawn to the recent decision of N ominal Defendant v Saleh [2011] NSWCA 16 where these principles to which I have referred were affirmed. McColl JA (with whom Beazley and Giles JJA agreed) noted, at [140], that the circumstances of the case may negative the assumption that a party who has not cross-examined a witness will be taken to have accepted the witness' evidence as true. One example given by her Honour was where the witness' evidence is fanciful, such as not to warrant cross-examination, although, I would suggest that it would be a brave advocate who did not cross-examine such a witness at all. Another example is where it is apparent from the manner of the conduct of the trial that evidence is contested. This situation occurs frequently in District Court personal injury litigation, where the parties' opposing expert reports are admitted into evidence but the parties do not require the experts for cross-examination.
Trial judge's reasons 341In dealing with the consequence of Mr Hamod not cross-examining the respondents' witnesses, Harrison J noted, at [172], that Mr Hamod had not required the witnesses for cross-examination. His Honour identified the statements upon which the State principally relied, including those of Mr Balding, Detective Sergeant Riddle, Detective Sergeant Eastham and Mr Wall. His Honour observed that where any of those witnesses had given a statement to the police for the purposes of the Local Court proceedings, they had adopted the contents of that statement for the purposes of these proceedings. This was of course necessary in order for those statements to become sworn evidence in the subject proceedings. His Honour also noted that some witnesses had commented upon portions of Mr Hamod's statement. 342His Honour considered it sufficient to refer to some only of that evidence. Relevantly to the issues raised on the appeal, his Honour referred to the evidence of Mr Wall. Two aspects of that evidence are particularly relevant. First, his Honour, at [173], referred to the evidence that after meeting Mr Hamod (and others including Mr Balding) on 5 December, 1994, Mr Wall formed the belief that the certificates that Mr Hamod was attempting to sell were false. Mr Wall then contacted UBS and sought confirmation of his belief. Mr Ludowici of UBS confirmed to him in writing that the certificates were false. Secondly, Mr Wall also denied comments that Mr Hamod had alleged in his statement that Mr Wall had made to him. His Honour observed that Mr Wall's evidence, including these denials, all stood uncontradicted. 343His Honour concluded, in the first sentence of [177]: "The evidence of the first defendant's witnesses can therefore be taken to be accepted by [Mr Hamod] as truthful." This is the statement which is the express subject of ground 19. 344However, there was more in his Honour's reasons than this statement. His Honour said, in the same paragraph: "Such a state of affairs in the normal course of events would have been of considerable importance where the plaintiffs were represented by experienced counsel or solicitors. In the present case it probably cannot be disengaged from the conclusion that Mr Hamod as an untrained and self-represented litigant was unaware of the need to put significant matters in issue by appropriate challenge if he wished to make submissions that contradicted the evidence of these witnesses. This seems to me in any event to follow when one considers the evidence given by the witnesses upon whom the defendants relied and who were not cross-examined. There was not any 'credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence'. In the end result it is not critical to a determination of the dispute. This is for the reason that the evidence upon which the plaintiffs rely for their own case does not in my view establish what they must prove in order to succeed ." (emphasis added) 345In order to deal with Mr Hamod's submissions in an orderly way, it is convenient to restate what his Honour was saying in this passage. The principle that a party who fails to cross-examine a witness is taken to accept the truth of that evidence applied in this case. This principle is of considerable importance where a party is legally represented. Mr Hamod was not represented, so it should be taken that he was unaware of the importance of not cross-examining the witnesses. His Honour then engaged the principle to which I have referred at [336] above. His Honour said that there was not any credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence. His Honour then moved to another consideration. He said that the application of these principles to this case was not critical to the determination of the dispute, because the evidence in Mr Hamod's own case was not sufficient to establish his cause of action. 346It is plain, therefore, that his Honour did not approach the matter in the way alleged in grounds 18 and 19. Notwithstanding this, Mr Hamod's focus in both his written and oral submission was that he was unrepresented during most of the trial, had tendered a significant number of medical reports relating to his ill health, had sought an adjournment on a number of occasions and his Honour had rejected the tender of the whole of the transcript.
Mr Hamod's submissions 347As to being an unrepresented litigant, Mr Hamod submitted that it was unfair for the trial judge to criticise his failure to cross-examine the respondents' witnesses and for accepting the witnesses and the evidence contained in their statements as truthful. In this regard, Mr Hamod complained that the trial judge treated him as a lawyer. This submission either fails to understand or misrepresents the entirety of his Honour's reasons at [177], as is apparent from a proper analysis of them, an analysis which, I must say, is not a difficult undertaking. The reasoning was clear. 348I have dealt with the medical evidence already: see above in section (2) at [127] ff. That evidence did not support a case that Mr Hamod was unable to continue with the trial. Rather, the evidence was to the effect that Mr Hamod's health would be aided by a conclusion of the proceedings. Mr Hamod also complained that the trial judge erred in treating his failure to cross-examine the respondents' witnesses as a deliberate forensic decision, especially in circumstances of ill health. Again, this argument does not accurately reflect his Honour's reasons at [177]. His Honour expressly referred to the fact that Mr Hamod was unrepresented and accepted that he was " unaware of the need to put significant matters in issue by appropriate challenge in cross-examination ". For myself, I consider that was a generous approach by his Honour. However, all that needs to be said is that the submission fails accurately to deal with his Honour's reasons. 349Mr Hamod contended that the trial judge should have granted him an adjournment to obtain legal representation so that cross-examination could be undertaken, and that the challenge would have been similar to that at the criminal trial. It is difficult to know at what point of the trial this complaint is directed. In any event, after the hearing of the adjournment application, nothing new arose to cause his Honour to alter the decision he had made on 29 August. The same can be said of the adjournment application refused on 16 September 2008. 350The emphasis in Mr Hamod's oral submissions was in respect of his Honour's error in failing to grant an adjournment and in refusing to admit the transcript. Mr Hamod submitted that the transcript in the Local Court proceedings was the heavily competing evidence that he sought to tender and upon which he would then have cross-examined (App Tr 20.07.11 32). The submission recognised that one of the uses Mr Hamod would have made of the transcript was for the purposes of cross-examination. However, the fact that the transcript had not been admitted into evidence did not prevent Mr Hamod from using it for that purpose. The transcript was material available to him to use as a basis for cross-examination, regardless of the fact that it was not in evidence. 351In any event, as I have already discussed, it is improbable that any cross-examination of UBS' witnesses would have assisted Mr Hamod. The evidence that the Platinum Certificate was a fake was overwhelming. Nor, in my opinion, would cross-examination of the other witnesses have assisted his case. The cross-examination of the Crown witnesses in the Local Court did not elicit responses that, on any view, could be described as " heavily competing evidence " to the evidence of the respondents' witnesses in these proceedings. Notwithstanding that the charges were dismissed, the responses in cross-examination in the Local Court were all heavily against Mr Hamod. 352Finally, on Mr Hamod's submission, the " one person " Mr Hamod identified as being able to verify that the Platinum Certificate was genuine was UBS AG. However, the witnesses from UBS AG gave evidence that the Platinum Certificate was not a genuine certificate issued by UBS AG. I explain below the circumstances in which Mr Hamod did not cross-examine those witnesses: see section (6); ground 7; [384] ff.
Conclusion on the cross-examination issue 353In my opinion, no error has been shown in the manner in which his Honour dealt with Mr Hamod's failure to cross-examine the witnesses and these two grounds of appeal should be dismissed.
Section (6): Validity of the Platinum Certificate: grounds 3, 4, 7, 14 and 20 354Before dealing with Mr Hamod's appeal against the dismissal of the three causes of action against the State and two of the causes of action against UBS, it is appropriate to deal with the challenges relating to this Honour's finding that the Platinum Certificate was not genuine.
Was the Platinum Certificate genuine? 355Grounds 3, 4, 7, 14 and 20 relate to this issue. As grounds 7, 14 and 20 more directly challenge his Honour's finding that the Platinum Certificate was not valid, I will deal with them before grounds 3 and 4. Some introductory remarks to the issue are necessary. 356At the hearing in the Local Court, the prosecution called evidence that the Platinum Certificate was not genuine. That evidence was principally given by Mr Schicker, an investigations officer with UBS AG, as well as by Mr Ludowici. Both Mr Schicker and Mr Ludowici provided statements of evidence in these proceedings. Mr Schicker's transcript of evidence in the Local Court was exhibited to his statement of evidence and admitted into evidence. Mr Schicker affirmed the correctness of that evidence save for a number of insignificant corrections. Mr Ludowici exhibited his statement in the Local Court and the transcript of his evidence in the Local Court to the statement of evidence in these proceedings and affirmed the correctness of that evidence. In addition, statements of evidence of Messrs Gauch, Mueller-Lhotska and senior employees of UBS AG, and Mr Westwood, expert document examiner, were adduced in evidence before his Honour. 357His Honour held, at [148], that the Platinum Certificate was not genuine. In this regard, his Honour stated, at [196], that the evidence that it was not genuine was overwhelming. His Honour further stated that Mr Hamod had not led any evidence to suggest, let alone prove, that the Platinum Certificate was genuine. 358Mr Hamod challenges his Honour's finding in the three ways described in grounds of appeal 7, 14 and 20. It is not necessary to set out all of the evidence in detail. It is sufficient to refer to the following to indicate the nature of the evidence that his Honour considered was overwhelming, before dealing with the specific grounds of appeal on this issue.
Mr Schicker's evidence 359The initial advice that the Platinum Certificate was false came from Mr Schicker in his facsimile to Mr Ludowici of 7 December 1994. He was asked to provide further confirmation of that in the following weeks. He gave evidence in the Examining Magistrate's Court in Switzerland in March 1996 at which Detective Senior Constable Day was present. That evidence was not before the Local Court. However, it is clear from Mr Schicker's answers in cross-examination that his evidence in Switzerland was to the same effect as he gave in the Local Court. 360In his evidence in the Local Court, Mr Schicker described his position as an investigator with UBS AG which involved anything to do with security, that is criminal activity inside the bank or against the bank. In the course of his duties he had access to all of UBS AG's records. 361Mr Schicker was shown a copy of a certificate, some pages of which had been forwarded to him by Mr Muhlbauer from the Sydney office of UBS sometime after 14 December 1994. These were pages of the Platinum Certificate. He was asked what view he had formed of that document and he replied that it was " a paper that never has been issued by ... UBS ". He referred to spelling mistakes, the incorrect logo and unusual features of the signature. He explained the style of UBS was to have a typed version of the name underneath the signature, which was not the case on this document. He was asked whether he had checked the signatures on the Platinum Certificate. He had not been able to decipher the signature on the left-hand side of the document but said that the signature on the right-hand side, " Robert Houner ", was not a person that had ever worked for UBS. He also said that the amount of " 4.5 M kilos " was just too large. He said " that's impossible, that amount ". 362He was shown the document in respect of which he had given evidence in the Swiss Examining Magistrate's Court. Detective Senior Constable Day's evidence was that that document was the Platinum Certificate. He pointed out a series of errors in the Certificate, including spelling mistakes, words that did not make sense, the wrong logo, the wrong address for UBS AG and statements within the document that did not make sense. He gave by way of example the phrase, " Based on the decision Certificate of International Metal Deposit BLD ". He said: "It doesn't make any sense to write this kind of thing into a certificate of this kind, and I want to say it very nicely, it's just stupidity." 363He said that the reference to the " Finance Centre, Ministry " did not make sense. He had no idea what the reference to the Finance Minister was doing on a document issued by a bank. He also said that the sequence of numbers on the document were not numbers used by UBS AG. He was pressed later in cross-examination about the numbers on the document and reiterated that those account numbers were not account numbers used by the bank. He brought with him, as proof, a document recording the development of account numbers in the bank for the last 50 years. He identified other mistakes as well. 364Mr Schicker was cross-examined about the name 'George Kurian'. He said that he knew the name. Mr Kurian had come to the bank in November or December 1993 and presented documents to the bank that were like the ones he had examined in this matter. He said that he told Mr Kurian that the document was not issued by UBS AG and that they were forged documents. He said he told Mr Kurian that if he did not hand them over he would call the police. After some discussion, Mr Kurian had handed the documents over. 365Mr Schicker was cross-examined as to the nature of the enquiries that he made in order to come to the conclusion that the Platinum Certificate was not issued by UBS AG. Mr Schicker said that enquiries were made at least as far back as 1978, being the date on the document. He said enquiries were made with the personnel department in respect of the name Robert Houner. He also made enquiries with the precious metal department of UBS AG. He said that UBS AG is one of the largest banks in the world dealing in precious metal and that the precious metal department did not deal with certificates like this. He reiterated that there were no words or account numbers which were in any way related to UBS AG. 366Counsel for Mr Hamod asked whether there was anything on the front of the Platinum Certificate that was correct. Mr Schicker proffered that " perhaps the name Zurich " was correct. He repeated that the logo was not correct. He said that the custom on UBS AG documents was to use one logo only and not several logos in different styles, as was the case on the Platinum Certificate. Mr Schicker had original documents bearing the UBS AG logo to demonstrate the point. He agreed that the logo in the middle of the front page of the Platinum Certificate had similarities to the UBS AG logo, but that it definitely was not the correct logo. 367Mr Schicker denied that there was a watermark on the document. In further questioning on the watermark, he said that there was no watermark on any of the 35 pages of the Platinum Certificate that all of the pages were printed pages. 368Mr Schicker agreed that when he responded to Mr Ludowici's enquiry in December 1994, he only had in his possession the front page of the Platinum Certificate. He said, however, that he had seen a full version of the Platinum Certificate in the examining magistrate's enquiry in Switzerland and had also seen the full version of other certificates in 1994 and 1995 and that those certificates had been seized either by UBS AG or by the police. Later in his cross-examination, he said that there had been about 200 cases of similar certificates produced since 1991. 369He was directed to the word " governor " on the Platinum Certificate and said that there was no such title within UBS AG. He said that " it was clear that no bank in the world produce such a document "; and " I can go with you word by word and I can prove that this is a product of the fantastic and not a real document ". He reiterated that the only correct words on the Platinum Certificate were " Zurich " and " Union Bank of Switzerland ". He again said that the whole document was a " product of fantasy ". 370He was cross-examined about the documents produced by UBS in relation to precious metal accounts. He said that the bank only issued statements of account with the name of the lawful owner of the account. No other certificates bearing the name of any other person were issued. He said that such documents issued by UBS AG were not bearer certificates. 371Mr Schicker also said that kilos or tonnes were not the usual standard used by banks for precious metals. Rather, the measure used was ounces. He also said that he did not know where 4590 tonnes of platinum could be stored. He said that such a quantity would not be kept by any one single bank in the world. He pointed out that the total gold reserves of Switzerland was 1200 tonnes. 372He was asked about his knowledge of persons by the name of Frey and Hagan. He said he had become aware of those names on his flight to Australia, but he did not know them personally. He did not know the name Walter Aleman. 373The cross-examination then focused on 17 January 1995. Mr Schicker was directed to a facsimile that he sent on that date regarding mistakes on the Platinum Certificate and was asked whether, at that stage, he had been certain that the Platinum Certificate was false, or whether he had still been investigating it. He responded that at that stage it was already clear that the document was " a product of imagination " and " a product of true fantasy ". He said that was his view the first time he saw it. He was cross-examined to the effect that if that was his view, why he had undertaken further investigations in respect of the Platinum Certificate. He said that he had been requested by UBS to do further research in the precious metals personnel section.
Mr Gauch's evidence 374Mr Gauch had worked for approximately 39 years in the banking industry. Most of that time had been spent working in the area of precious metals trading. In 1986, he became an executive director of Swiss Bank Corporation and head of its precious metals division. In 1998, Swiss Bank Corporation merged with the Union Bank of Switzerland to form UBS AG. After the merger, he became the head of precious metal sales for UBS AG in Zurich. His role included the marketing, worldwide, of precious metals, including platinum. He was fluent in German, English and French and used those languages extensively in the course of engaging in the precious metal trading for the bank. He also had a basic knowledge of Spanish and Italian. The relevance of Mr Gauch's facility in languages was because various languages were used on different parts of the Platinum Certificate. Mr Gauch retired in 2003 and his statement was based upon his experience and direct knowledge of UBS' practices up until that time. 375Mr Hamod had not required Mr Gauch for cross-examination. Mr Hamod's request for witnesses to be cross-examined is considered below in relation to ground 20. 376Mr Gauch's evidence was cast against the background of Mr Hamod's claim that the Platinum Certificate constituted evidence that the bearer of the Certificate was the owner of 4590 metric tonnes against all but the " true owner ". Mr Gauch said that having regard to the positions that he has held both at Swiss Bank Corporation and UBS AG, and his experience in the area of precious metals, he would have known if UBS AG had issued or authorised a document that entitled the bearer to any quantity of platinum. 377Mr Gauch said that it was not the practice of any Swiss bank, including UBS AG, to issue or authorise any tradable or negotiable instrument that: (a) conferred on the bearer title to, or evidenced ownership by the bearer of, a quantity of precious metal (including platinum); or (b) constituted a guarantee to the bearer backed by precious metal (including platinum). He said that to his knowledge, no Swiss bank, including UBS AG, ever issued or authorised any instrument of the kind referred to in the preceding paragraph. He reiterated that it was unlawful for Swiss banks to issue bearer certificates in respect of precious metals and said this was the common understanding of traders in the clearing banks. 378Mr Gauch also gave evidence relating to the quantity of platinum to which the Platinum Certificate related. On his evidence, the total world production of platinum group metals (of which platinum is only one of six such metals) from 1900 to 2004 was 10,850.68 metric tonnes. It will be recalled that the Platinum Certificate, which was purportedly in respect of platinum only, was for nearly half that amount. 379Mr Gauch said that during his career, he had seen at least 50 certificates purportedly issued by either UBS AG or Swiss Bank Corporation that were similar to the Platinum Certificate. He said most of those certificates " bore Indonesian names such as Suharto or Sukarno ". He said that such certificates were bogus. He said that he had even seen such certificates bearing his name and a signature purporting to be his. He said he had never signed or had any involvement in the creation of any such certificate. 380Mr Gauch had examined a black-and-white copy of the 32 pages of the Platinum Certificate and provided over 50 pages of comments thereon. The following is a limited example of the errors he found in the Platinum Certificate. He identified spelling mistakes, the use of a non-existent address and the use of a logo that had never been used by UBS AG. He listed as examples of the spelling mistakes " Rusian " for " Russia " or " Russian ", " Saud of Arabia " for " Saudi Arabia " or " Yordanisse " for " Jordan " or " Jordanian ". He also said that he had never come across those spellings in any language. 381He identified abbreviations and phrases that were unknown in banking or precious metals trading. He noted that the Platinum Certificate made reference to positions, for example, " President of Director " and entities, for example, " International Commercial Bank ", of which Mr Gauch had never heard. Likewise, he said that there was no such entity as the " Finance of Central Ministry " or " Central Ministry of Finance ", both of which terms were used in the Platinum Certificate.
Mr Mueller-Lhotska's evidence 382Mr Mueller-Lhotska, Director, Historical Archives of UBS AG, also gave evidence by way of statement. Mr Mueller-Lhotska was not required for cross-examination by Mr Hamod. 383Mr Mueller-Lhotska stated that he had held his position since 1997. He was provided with an electronic copy of the Platinum Certificate. He also provided details of significant errors on the face of the Certificate. These included spelling mistakes, the statement of non-existent positions within UBS, wrong addresses, wrong telephone numbers, and the identification of a person, " Robert Houner " as " Governor Bank Union Bank of Switzerland " who was never a member of UBS AG' management at any time during the period 1920-1997.
Ground 7: His Honour erred by failing to determine that the Platinum Certificate was genuine, valid and authentic despite his Honour's finding that in September of 1994 Mr Hamod had received unspecified threats and demands from Mr O'Dowd and Mr Clarke if he did not return the Platinum Certificate to them
Mr Hamod's submissions 384In support of ground 7 Mr Hamod contended that it was not open to his Honour to find that the Platinum Certificate was a fake in circumstances where he was unrepresented for a significant part of the trial and was heavily criticised in the judgment for not having cross-examined Mr Westwood, Mr Gauch, Mr Mueller-Lhotska, Mr Schicker, Mr Ludowici, Mr McMurtrie and Mr Muhlbauer. 385Mr Hamod also relied upon the fact that he had been acquitted of the offence charged and that a significant factor in that acquittal was the challenge he made to witnesses called on behalf of UBS before Magistrate Horler. Mr Hamod again referred to the fact that the transcript of the evidence of those witnesses was not admitted as evidence before his Honour. 386Mr Hamod also complained that it was unfair to him for the trial judge to have embarked upon a final determination about the Platinum Certificate and its authenticity when he was unrepresented and suffering from ill-health. In any event, he submitted that the findings made by Magistrate Horler to which he referred, corroborated substantially his assertion that the Platinum Certificate was authentic and valid. 387Mr Hamod relied upon the fact that he had been cross-examined extensively in the proceedings before his Honour and found to be a witness of truth. In this regard, it should be noted that no adverse credibility finding was made against Mr Hamod, notwithstanding that the thrust of the cross-examination was that he was a person prone to wild exaggeration. 388Mr Hamod contended that his Honour had material available to him from which to draw a rational inference that the Platinum Certificate was a valid document, capable of being negotiated at the relevant time. He submitted that the evidence of the respondents should have been accorded little weight, given that he was unrepresented and could not have known the significance of challenging those statements in cross-examination. Again, Mr Hamod relied upon the fact that witnesses were cross-examined in criminal proceedings with the result of a verdict in his favour. He submitted that his acquittal permitted an inference to be drawn that the Platinum Certificate was authentic and valid. 389Another factor upon which he relied was that the Platinum Certificate had been released back into his possession by the Magistrate pursuant to the Criminal Procedure Act 1986, s 32. Mr Hamod said that the Magistrate would not have done that had she considered that the document was a fake. In this regard, Mr Hamod said that the absence of the transcript of the Local Court proceedings meant that his Honour was not appraised of what occurred after his acquittal when there was debate regarding the return of the Platinum Certificate to him. 390These submissions are misguided. In the first place, they do not address the ground of appeal. Nor do they advance a rational basis to support the argument that his Honour ought to have found that the Platinum Certificate was genuine. As the respondents pointed out, unspecified threats or demands, of themselves, could not establish that the Platinum Certificate was genuine. 391These matters are sufficient to dispose of this ground. However, Mr Hamod made a further submission in which he contended that the question whether the Platinum Certificate was genuine in 2008 was not in issue before his Honour. That is true. However, Mr Hamod's case depended upon the validity of the Platinum Certificate, a copy of which he showed to Mr Wall. His Honour determined that that Certificate was not valid. The certificate that his Honour was concerned with was the same document that Mr Hamod had used in his negotiations with Mr Wall in 1994-1995. The evidence was that such a certificate had never been issued by UBS. If it was a fake document in 1995, it was always a fake, and if it was a fake document in 2008 it was a fake document in 1995. There was no point of substance in this particular submission, which seemed to misunderstand his Honour's findings. 392The other complaints that Mr Hamod makes arising out of the fact that he was unrepresented have been dealt with elsewhere. 393I would dismiss ground 7.
Ground 14: His Honour erred by failing to determine whether or not UBS' contention that there were ten different versions of the Platinum Certificate tendered by Mr Hamod was in fact made out
Mr Hamod's submissions 394The complaint raised in ground 14 was that his Honour erred in that he made no finding in respect of UBS' contention that there were 10 different versions of the Platinum Certificate in the material tendered by Mr Hamod, a matter referred to in his Honour's judgment, at [72], where he said: "... [e]xhibit 'N' ... is a copy of [the Platinum Certificate] and is undoubtedly relevant. It requires no further comment at this time. I note, however, that [UBS] contended that the documents tendered by [Mr Hamod] in fact contained as many as ten separate and different versions of [the Platinum Certificate]." Mr Hamod complained that this part of the judgment cast no light on the decision made against him.
Conclusion on ground 14 395It is apparent that his Honour considered it unnecessary to determine whether there were 10 different versions and what relevance that might have. Had he embarked on that task, it would not have resulted in a finding favourable to Mr Hamod. The fact that there were many different versions of a certificate, said to be a bearer certificate for platinum, worth in the order of $60 B, would point to its lack of authenticity, not the reverse. 396In any event, Mr Hamod did not explain what finding, if any, should have been made and why any such finding should have been made. With respect to the drafter of the notice of grounds of appeal, this ground was nothing more than a grab at a single sentence in his Honour's judgment that could not have had any impact on the outcome of the appeal. The appeal ground should not have been brought. 397I would dismiss ground 14.
Ground 20: His Honour erred in admitting and/or accepting the opinions and conclusions of Mr Westwood, Handwriting and Document Examiner
Mr Hamod's submissions 398Mr Hamod submitted that his Honour erred in admitting and accepting the opinions and conclusions of Mr Westwood, Handwriting and Document Examiner. As explained more fully below, Mr Westwood was originally required for cross-examination but this requirement was later withdrawn. 399Mr Westwood provided an expert report dated 27 March 2008 in respect of various types of examination he carried out on the Platinum Certificate to determine if it was a document issued by UBS. Mr Westwood stated that: "... given the inherent nature of the questioned document as a whole, in terms of the combination of errors, defects, inconsistencies, poor print quality and the absence of any standard security features such as watermarks, ultraviolet dull paper, fluorescent planchettes and security fibres, or intaglio printing ... it is very probably the case that [the Platinum Certificate] is not a genuine document." 400Mr Westwood was also provided with a series of control documents, being original documents issued by UBS in the period October 1912 to April 1978. Having examined the Platinum Certificate against those control documents, Mr Westwood stated: "(161) ... It is inconceivable ... that the number and nature of ... defects and the internal inconsistencies evident in [the Platinum Certificate] could possibly escape the attention of the many people usually involved in the pre-press design of a security document, the contract proofing and initial client acceptance, and final printing and ultimate client acceptance. (162) The only reasonable explanation for the presence, throughout the whole [Platinum Certificate] of commas exhibiting such a high degree of variability in orientation, form and size is that they were hand drawn ... ... (164) Even if I had not had access to control documents, the combination of features discussed throughout this report would establish that [the Platinum Certificate] is inherently inconsistent with being genuine ..." 401The trial judge, at [148], concluded that the evidence clearly established that the Platinum Certificate was not genuine. His Honour referred in this connection to the statements of UBS' witnesses, noting that those witnesses had not been cross-examined. His Honour further commented that " the evidence of Mr Westwood gives collateral support to these opinions ". 402Mr Hamod submitted that he was either absent from the courtroom or ill at the time when Mr Westwood's report was admitted. He said therefore that this was an " exceptional circumstance ". He referred, without any elaboration, to Coulton v Holcombe [1986] HCA 33; 162 CLR 1. It is not clear what point Mr Hamod was making. I can only assume that his contention was that he should not be bound by his conduct at trial, that is, his failure to cross-examine Mr Westwood because he was absent. Presumably he would argue that had he been present, he would have objected to Mr Westwood's report or cross-examined him. 403If my understanding is correct, this argument does not fall within the principles stated in Coulton v Holcombe . That case stands for the proposition that a party will not be allowed, on appeal, to raise a point that was not taken in the court below. There are recognised exceptions to this principle, where on a question of law, such as the construction of a document, or where there are facts either admitted or proved beyond controversy, the appellate court may, as a matter of convenience in the interests of justice, determine the matter. A challenge to an expert's opinion does not fall into that exception, especially when the expert was not required for cross-examination, as is explained below. 404Mr Hamod submitted that in any event, Mr Westwood's evidence was irrelevant to the question whether he had an honest and genuine belief as to the authenticity and validity of the Platinum Certificate. He contended he had every reason to believe that the Platinum Certificate was genuine. He submitted that an opinion as to the genuineness of the document in 2008 was irrelevant to his state of mind in 1995. As I have already found, proof of the validity of the Platinum Certificate was essential to the causes of action pleaded against UBS. Mr Westwood's evidence had relevance apart from Mr Hamod's state of mind and his opinion was as to the authenticity of the document shown to Mr Wall in 1994/95. 405Further, it is plain from his Honour's comment that " the evidence of Mr Westwood gives collateral support to these opinions " that Mr Westwood's opinion was supplementary only to the conclusion to which his Honour otherwise came from the statements of UBS' witnesses, which soundly led to that conclusion. Even if Mr Westwood's report should not have been admitted, an error in admitting it was not material to the outcome of the proceedings. For this reason alone, this ground of appeal should be rejected.
UBS' submission that Mr Westwood was not required for cross-examination 406UBS resisted Mr Hamod's argument in support of this ground on another basis. Mr Westwood's report was tendered by UBS. The submission acknowledged that Mr Hamod was not in court when Mr Westwood's report was tendered on 8 September 2008 and that there was no cross-examination of him. However, UBS pointed out that Mr Hamod wrote to the solicitors for UBS on 2 September 2008 and stated that he did not require the attendance of any person for cross-examination. UBS further pointed out his Honour had directed that objections to witness statements be notified by 23 May 2008. No objections were ever notified, notwithstanding follow-up letters by UBS' solicitors to Mr Hamod. Further, notwithstanding that Mr Westwood's report had been served on Mr Hamod at least a month before the commencement of the hearing, he had not filed any rebuttal evidence. 407It followed on UBS' submission that even had Mr Hamod been present when Mr Westwood's report was tendered, it would have been admitted without objection, without cross-examination and without contrary evidence being adduced by Mr Hamod. 408Further context needs to be added to UBS' submission. By letter dated 19 May 2008, Mr Hamod gave notice to UBS' solicitors that he required six named witnesses for cross-examination. Mr Westwood was one of those witnesses. Mr Gauch and Mr Mueller-Lhotska were not named as being required for cross-examination. At that time, Mr Hamod was acting for himself and the letter went directly from him to the solicitors by facsimile transmission. 409On 2 September 2008, Mr Hamod wrote to UBS' solicitors stating that he had received a hard copy of his Honour's judgment of 29 August 2008 in which his Honour had refused his adjournment application. He said that he was seeking legal advice in relation to the decision and would inform UBS as soon as possible of his position. He also confirmed that he would be in court on 8 September 2008. Relevantly to the issue raised by ground 20, Mr Hamod also stated in the letter: "I confirm that I do not require the attendance of any of your witnesses for cross-examination." 410He also said in the letter that he was endeavouring to serve his proposed amended statement of claim upon the respondents and that he was intending to seek leave to file that in Court on 8 September 2008. He also confirmed that he would serve his affidavit and one set of documents that he intended to file in court so as to conclude his evidence.
Conclusion on ground 20 411This correspondence demonstrated that Mr Hamod had an understanding of various court processes. He understood that he would need leave to file a further amended statement of claim. He understood the requirement of giving notice for witnesses to be available for cross-examination. It must be assumed that when he gave notice on 19 May 2008, at a time when he was not legally represented, he had made a considered decision to cross-examine the named witnesses. Whether that was because he had legal assistance at that stage is not known but is, in any event, irrelevant. The fact is, he knew what was required to be done to have witnesses attend for cross-examination. In my opinion, it should likewise be assumed that when he gave notice on 2 September that he did not require the witnesses for cross-examination, that was a considered decision by him as to how he proposed to conduct the proceedings. 412In my opinion, these are further reasons why this ground of appeal should be rejected.
Ground 3: His Honour erred in determining that Mr Hamod was required to lead direct evidence in support of the issue as to whether or not the Platinum Certificate was genuine for the purposes of the torts relied upon by Mr Hamod in his suit
Ground 4: His Honour erred in determining that it was not open to Mr Hamod to agitate a case based on inference and admissions regarding the validity of the Platinum Certificate
Mr Hamod's submissions 413His Honour noted, at [22], that it was " apparent that one of the important planks in [Mr Hamod's] case is the contention that the certificate is a genuine document " and that Mr Hamod had not led direct evidence in support of the issue and had ultimately failed to cross-examine witnesses called by the respondents who did give direct evidence about it. 414Mr Hamod contended that the evidence before his Honour clearly demonstrated that he had every reason to believe, based on sources identified by him in Switzerland, together with letters of instruction or mandates issued by Mr Clarke and Mr O'Dowd, that the Platinum Certificate was authentic and valid. Mr Hamod also relied upon the terms of the Buy/Sell agreement and the record of the discussion in UBS' board room on 20 January 1995, in which Mr Hamod said that he had been insistent that the putative buyer (who was the undercover police officer) satisfy himself as to the authenticity and validity of the Platinum Certificate. He also relied upon his answer to question 19 in his Record of Interview, as follows: "Q19: Right. Can you tell me what they were buying? A: They claimed that they have authenticated a faxed copy of that certificate and they have verified it in the bank head office at Switzerland, and they told me they would like to buy the certificate from us. And we have sent a written agreement with all the procedures and of all the information they relate to the certificate. And I've asked them during that meeting as to whether they have received copies of that agreement, and they say yes they have. And I said, 'Well, are you happy with it?' and they said yes they were." 415Mr Hamod argued that, in any event, it was not for him to prove that the Platinum Certificate was authentic and valid. Rather, he contended that all he had to prove was that, only having regard to what was said in the meeting on 20 January 1995 and the Record of Interview, he was entitled to have formed the view without any criminality that the Platinum Certificate was genuine. Mr Hamod also submitted that all he had to prove to succeed on his claims was that he had a reasonable and honest belief that the Platinum Certificate was a valid document capable of being transacted upon, subject to a thorough undertaking of due diligence and independent authentication and validation by an independent buyer. 416It is not easy to see how these submissions related to the grounds of appeal.
The respondents' submissions 417The State argued that both grounds 3 and 4 misstated his Honour's reasons. His Honour had not made a determination to the effect alleged in these grounds. The State submitted that, at [22], his Honour made an observation and not a determination, that is, that his Honour had not determined that Mr Hamod was required to lead direct evidence or that it was not open to agitate a case based on inference and admissions. Rather, his Honour noted that Mr Hamod had not adduced any direct evidence as to the validity of the Platinum Certificate and had advanced a case based on inference. UBS supported this submission. This is a correct understanding of his Honour's reasons. Mr Hamod's construction of the reasons is not correct. 418However, although Mr Hamod did not have to call direct evidence that the Platinum Certificate was genuine and could have proved its genuineness by circumstantial evidence, he was faced with a defence case in which there was overwhelming evidence that the Platinum Certificate was not genuine. The evidence he relied on was not sufficient to support the inferential case he advanced, nor was it sufficient to have that case preferred over the direct evidence adduced by the respondents. 419UBS submitted that, contrary to Mr Hamod's submission, each of the causes of action brought against UBS required him to prove that the Platinum Certificate was valid and authentic. UBS' submission must be upheld. In respect of the claim of a conspiracy by unlawful means, Mr Hamod pleaded that UBS had made a false statement in alleging to police that the Platinum Certificate was in fact a fake or forgery. In the injurious falsehood claim, Mr Hamod pleaded that UBS had made representations to the police that the Platinum Certificate was a forgery and that such representations were false. The same must be said of Mr Hamod's injurious falsehood claim against the State.
Conclusion on grounds 3 and 4 420In my opinion, grounds 3 and 4 should be rejected.
Ground 15: His Honour erred in determining that Mr Hamod had failed to prove on the balance of probabilities that there was a wrongful or false arrest and a wrongful or false imprisonment 421In ground 15 Mr Hamod appealed against his Honour's dismissal of his claims in both false arrest and false imprisonment. As I indicate below, Mr Hamod did not direct any submissions to this ground insofar as it related to false imprisonment. However, as the claim in false imprisonment stood or fell with the claim in false arrest, it is only necessary in these reasons to deal with false arrest.
The power of arrest: legal principles 422As at 20 January 1995, the statutory power of arrest was contained in the Crimes Act , s 352(2) which provided that an arresting officer may arrest any person, without warrant, whom the officer " with reasonable cause, suspects of having committed any [offence under the Crimes Act punishable either by indictment or summarily] ". Harrison J, after referring to this provision, at [84], correctly referred to the principles in George v Rockett [1990] HCA 26; 170 CLR 104 as to the required state of mind necessary for this section to be satisfied. 423In George v Rockett , the Court stated, at [14]: "Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303): 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.' The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture." 424In addition to the statutory power of arrest in s 352(2), the common law requires that an arresting officer inform the arrested person of the true ground on which the arrest is made: see Christie v Leachinsky [1947] AC 573. This requirement is fully discussed in decisions of this Court: see, in particular, State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 and Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 . 425It is not necessary to repeat here all that is said in those judgments. It is sufficient to note that those judgments establish that it is not necessary for the precise charge to be told to the arrested person at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person's liberty has been restrained. This is sometimes described as requiring that the arrested person be told the " true reason " for the arrest, or the " substance of the reason " for the arrest. The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case. 426There are thus two considerations that need to be satisfied in the present case. First, that Detective Senior Constable Day, as the arresting officer, had a reasonable suspicion that Mr Hamod had committed an offence. Secondly, Mr Hamod had to have been informed at the time of his arrest the reason why he was being arrested.
The pleaded case 427The allegation in relation to false arrest in the pleading was based on the report Mr Hamod provided to Detective Sergeant Eastham of Nowra police. In that report he had outlined the alleged false allegations made by Galaxy that he had stolen the Platinum Certificate. He pleaded that this " information " meant the police knew that the Platinum Certificate was genuine. Accordingly, the police did not have reasonable and probable cause to believe that the Platinum Certificate was not authentic: see sixth amended statement of claim, para (49). 428By way of particulars, Mr Hamod alleged there had been meetings between Detective Superintendent Green and Detective Sergeant Eastham, of Nowra police, as well as members of the Federal Police, on or about October/November 1994, dismissing allegations of an alleged theft by Mr Hamod of the Platinum Certificate from Galaxy. 429In the earlier part of the sixth amended statement of claim, Mr Hamod had alleged the following factual matters: "19 On or about October 1994 after receipt of the said threats [he] laid information with the New South Wales Police at Nowra Police Station and reported the threats to Detective Superintendent Green and Detective Eastham. 20. On or about the time of laying the said information [he] supplied to the said police officers documentary evidence as to the authenticity and validity of the Platinum Certificate and of [his] right as conferred upon him ... to hold the said Certificate pursuant to authority granted by [Galaxy] and sell it less payment of commissions, costs and disbursements. 21. In addition, [he] provided the police officers with a statement and documents as to his involvement with [Galaxy], the sale of the Gold Certificates and the Platinum Certificate, together with the agreement for payment of costs, disbursements and commissions from the sale. 22. After receipt of the said documentation Detective Superintendent Green represented to [him] that officers from the Federal Police would be engaged to locate Messrs O'Dowd and Clarke and to stop threats being made against [him] and his family. 23. On or about October 1994 a member of the Federal Police contacted [him] and represented to him inter alia that a complaint had been made by [Galaxy] to the International Police ('Interpol') that the said Platinum Certificate had been stolen by [him] from [Galaxy]. 24. At the same time [he] referred the Federal Police to Detective Superintendent Green and Detective Eastham to verify [his] entitlement to hold the Platinum Certificate. 25. On or about October 1994 Detective Sergeant Eastham represented to [him] that after conferring with Detective Superintendent Green and the Federal Police and reviewing the documentary evidence they had dismissed and would not pursue the allegations of [Galaxy] to Interpol."
Additional facts relating to false arrest 430The allegations in paras (19)-(25) focused on what I have already identified as a central thesis in Mr Hamod's case, namely, his report to Nowra police of threats made by Messrs O'Dowd and Clarke over his possession of the Platinum Certificate. There were, however, other facts relevant to the false arrest claim, in particular relating to the State's defence that it had complied with both its statutory and common law obligations in relation to the arrest. 431As indicated earlier, at [5], the Fraud Enforcement Agency had been making inquiries in relation to Mr Hamod's possession of the Platinum Certificate, in what was known as " Operation Cleggars ". The initial complaint to police had been made by Mr Ludowici on about 12 December 1994. Subsequently, UBS and Mr Wall agreed to participate in a planned operation in which an undercover police officer would pose as a buyer of the Platinum Certificate. Mr Wall's evidence as to his dealings with Mr Hamod and Mr Balding was central to his Honour's consideration of the false arrest ground and is also central to the determination of this ground of appeal. Other evidence which is relevant to this issue is the evidence of Mr Ludowici, Mr Teh, the intercepted conversations of 20 January, the statement of facts prepared by Detective Senior Constable Day relating to the charges against Mr Hamod, Detective Senior Constable Day's evidence, the Record of Interview and the evidence of Mr Damanik. 432It is convenient to deal first with the evidence of Mr Damanik, as his evidence is relevant to the allegations in paras (19)-(25) of the sixth further amended statement of claim.
Mr Damanik's involvement with the Platinum Certificate 433Mr Damanik was the chairman of Galaxy. His witness statement in the Local Court proceedings was admitted in evidence in these proceedings without restriction, save that the annexed power of attorney was not admitted as evidence of the truth of its contents. 434Mr Damanik said he first had business dealings with Mr O'Dowd in early 1994 in respect of aeroplane parts and telephone equipment. Mr O'Dowd sought Mr Damanik's assistance in relation to selling such equipment in Indonesia. 435Mr Damanik said that on 13 June 1994, Mr O'Dowd requested him to sign a power of attorney in favour of Mr O'Dowd in relation to some bullion certificates, including the Platinum Certificate. Mr Damanik agreed and gave a power of attorney to Mr O'Dowd " to negotiate, to sign contract necessary, to sale the three certificates ". Mr O'Dowd collected the signed power of attorney from Mr Damanik in Indonesia on 15 June 1994. 436Mr Damanik stated he did not sight the originals or copies of the certificates referred to in the power of attorney. He said that he " had no authority to issue the power of attorney for the sale of the goods as ... the certificates were never [his] ". He said that the only reason he granted the power of attorney to Mr O'Dowd was because Mr O'Dowd had promised to pay him " five or ten million dollars if the sale " of the Certificates went through. He said that he did not suspect that Mr O'Dowd, whom he understood was a university lecturer, was doing anything unlawful. 437On 3 January 1995, due to Mr O'Dowd's failure to communicate with him, Mr Damanik cancelled the power of attorney. He said he " thought something was wrong ". He said that he did not receive any monies from the arrangement. 438Mr Damanik said that he was not familiar with " a person named Anthony Hamod " and that " he did not know him ". He said that he was introduced by Mr O'Dowd to Mr Wong in Hong Kong. Mr Wong ran a business, Tone Chai Investments, and asked Mr Damanik to become his agent for the sale of machinery from Beijing to Indonesia. The proposal never came to fruition as Mr Wong did not speak English and they could not communicate with each other.
Mr Ludowici's evidence 439As at the date of his statement Mr Ludowici held the position of Executive Director, Logistics with UBS. His statement recorded that he was contacted by Mr Wall on 6 December 1994, whom he met at the offices of UBS in Sydney the following day. Mr Wall produced to him photocopies of a bearer platinum certificate, as well as other documentation between Mr Wall and Mr Hamod. Mr Ludowici stated that these documents: "... included a mandate for the person HAMOD to negotiate the sale of the certificate, given by HAMOD to WALL to a company named 'UTILIS'" 440The other documentation included correspondence from " previous holders " of the Platinum Certificate, one of these being Galaxy. There was also a letter of authority from Mr O'Dowd stating that he had given Mr Hamod authority to enter into negotiations for the sale of the Platinum Certificate. 441On the same date, that is, 6 December, Mr Ludowici faxed a copy of the Platinum Certificate provided by Mr Wall to UBS Security Services in Zurich. On 8 December 1994, Mr Ludowici received a facsimile reply from Mr Schicker that UBS " never issued such documents and that the document was a forgery, 'complete fantasy' ". 442Mr Ludowici wrote to Mr Wall informing him of the response he had received from Switzerland to the effect the Platinum Certificate was bogus. He indicated to Mr Wall that he should take care with the Platinum Certificate and also indicated that UBS would like to provide support for a police investigation. Mr Wall responded on 9 December 1994, indicating his willingness to assist UBS and any police action. 443Mr Ludowici reported the matter to the Fraud Enforcement Agency on 12 December 1994. In early January 1995, Mr Ludowici had further communications with Mr Wall as well as Detective Henderson from the Fraud Enforcement Agency. During that time, Mr Ludowici provided to police a copy of the facsimile from Mr Schicker dated 7 December 1994. On 16 January 1995, as he was going on leave, Mr Ludowici spoke to various persons concerned with the investigation and also spoke to Mr Muhlbauer at the offices of UBS in Sydney, where he handed Mr Muhlbauer a folder containing documentation relating to the sale of the Platinum Certificate. 444In the proceedings before Harrison J, Mr Ludowici provided a statement of evidence to which his statement to the police dated 7 March 1995 was attached, as was the facsimile from Mr Schicker of 7 December 1994, together with, amongst other documents, a copy of the transcript of his evidence in the Local Court. 445In his evidence in the Local Court, Mr Ludowici said that Mr Wall sent to him a copy of the Buy/Sell Agreement. He identified the Agreement he saw as one with the names of Mr O'Dowd and Mr Kurian on it. In cross-examination, Mr Ludowici was referred to cls (6)-(11) of the Buy/Sell agreement. He said that those clauses indicated to him as a banker that before Mr Wall proceeded with the transaction, he would be obtaining some form of certification that the certificates were genuine. It is likely that this was the Buy/Sell Agreement Mr Wall was given in Nowra on 5 December 1994 and which included the up-front fee provision in cl 6. Mr Ludowici also said that the buyer would be at risk if the authenticity of the Platinum Certificate was not checked, but that did not necessarily mean that the buyer would not go into the transaction anyway. 446Mr Ludowici also said in cross-examination that he had only sent the front page of the document to Switzerland for validation. He said that he thought the front page was sufficient and that he had already formed the opinion when he forwarded the document to UBS AG that it was not authentic. Mr Ludowici said that when he first saw the document there were two aspects that caused him to doubt its authenticity. First, from his knowledge from working with the bank, UBS had never issued " paper backed by precious metals ". The other matter was the amount of platinum involved. 447Mr Ludowici said that the advice he obtained from UBS AG confirmed what he had already understood, namely, that UBS did not issue a certificate of that nature. He said he conveyed that information to Mr Wall. He said Mr Wall was disappointed with this advice. He said that when he first met with Mr Wall on 7 December 1994, Mr Wall believed the document to be genuine. 448Mr Ludowici agreed that at no time did he consider either ringing Mr Hamod or having Mr Wall ring Mr Hamod and point out to him that the Platinum Certificate was false. Mr Ludowici was also cross-examined as to his objective in reporting the matter to police. The questioning was as follows: "Q. And you gave them a summary of what you perceived to be the true position in there? A. I gave them a summary of what I'd seen, Q. What you had seen, so you gave him an actual summary, is that what you're saying? A. Well, I believe it was factual, yes. Q. In that summary ... did you put as the objective of it was to protect the UBS name? A. That was certainly part of the intention ... it was not included in the -- Q. To protect an innocent buyer that can be duped? A. Yes. Q. Was that written among your summary? A. No. Q. Do you have any specific recollection of what that summary was? Are you saying it's a factual summary of what took place up to that time, is that what you're saying? A. In essence, yes. We'd been contacted by - it's a summary of the facts of the -- Q. And you saw that to be a police matter? A. Yes, I had a bogus certificate, and I believed that the appropriate thing to do was to contact the police. Q. Despite the fact you didn't tell the police that an innocent buyer can be duped - we want to protect the UBS name? A. That's for the police to determine. It's not for me to determine." 449Mr Ludowici said that sometime between 12 December 1994 and early January 1995 in a telephone conversation with Mr Wall, he asked whether the police were following up on the matter. Mr Wall replied, " I don't know, that's up to ... them ". Mr Ludowici also said that Mr Wall provided him with more documents on 4 January and he forwarded them to the police. He said that he could not recall whether Mr Wall asked him to forward those documents to the police, but it was certainly with his consent. 450Finally, Mr Ludowici was cross-examined about steps he was asked by the police to take relating to the authenticity of the Platinum Certificate. He said that he again sent the front page of the Platinum Certificate to UBS in Switzerland and in response they identified about eight matters which indicated it was not authentic.
Mr Wall's interaction with Mr Hamod and Mr Balding 451Mr Wall gave evidence in the Local Court proceedings as well as in the proceedings before Harrison J. He confirmed that the statement he gave to police on 22 March 1995, which was annexed to his statement of evidence in the proceedings before Harrison J , was true and correct (save for the spelling of Mr Damanik's name) . 452Mr Wall was an investment banker with Utilis and was first introduced to Mr Hamod in respect of the purchase of sugar. His first contact with Mr Hamod was by telephone on about 13 October 1994 and their first meeting was on 24 October 1994 at the offices of Utilis. That meeting was concerned with the purchase of sugar. Mr Wall's colleague, Mr Teh, was in attendance. In the course of that meeting, Mr Hamod asked whether Utilis had clients who would buy gold or platinum. Mr Wall said that this was possible. Mr Hamod produced two certificates, one being the Platinum Certificate. He said that he could sell the Platinum Certificate at a discount of 50 per cent. He enquired whether Mr Wall would be able to sell the Platinum Certificate and Mr Wall indicated that it was possible. 453Mr Wall said that Mr Teh questioned Mr Hamod about the genuineness of the Platinum Certificate. Mr Hamod said that he had recently returned from Switzerland and that the Platinum Certificate had been authenticated by senior bank officers at UBS AG in Geneva. He said he had met with the signatories to the certificates and they had verified their signatures. He said that the Platinum Certificate was owned by President Sukarno of Indonesia. He also said, confusingly, one would think, that Galaxy was the owner and that Galaxy had appointed Mr O'Dowd as the mandate to sell the certificates and that Mr O'Dowd had subsequently appointed Mr Hamod as mandate. 454Mr Hamod told them that Mr O'Dowd had been kidnapped in Europe and that he, Mr Hamod, was protected by MOSAD and the CIA. He mentioned other persons with whom he had met in Switzerland. He also said that the solicitors for a Dr Buggden in Switzerland had placed a lien on the Platinum Certificate, that this had been accepted by a Swiss judge and was to be effective from the following Thursday (28 October 1994). 455Mr Wall questioned him as to whether there were any other liens, to which Mr Hamod responded: "... the IMF and World Bank have a lien and this is registered with UBS and the US Federal Reserve has a claim for 10 per cent and these are accounted for in the discount." 456Mr Hamod explained that the seller wanted cash and the reason for the discount was that Mr O'Dowd had failed to sell the Platinum Certificate for two years. He said the discount was 50 per cent with 40 per cent to be paid to the seller and 10 per cent to be paid to Mr Hamod. Mr Hamod reiterated the Platinum Certificate was genuine and offered Utilis 1 per cent, that is, nearly US$600 M if he sold it. Mr Wall took a photocopy of the Platinum Certificate and handed the original back to Mr Hamod. 457In the days following the first meeting, Mr Wall had a number of telephone conversations with Mr Hamod in which there was discussion as to the sale of the Platinum Certificate. During the course of these telephone calls, Mr Hamod informed Mr Wall that he had authenticated the Platinum Certificate with Drs Frey and Hagan in Switzerland; that the legal holder was Mr Damanik and that the ownership involved Indonesia and the Fatima dynasty. 458Mr Hamod also told Mr Wall that the buyer would receive a certified copy of the Platinum Certificate for the purposes of undertaking due diligence and that the sale would follow a " hard copy procedure " after the buyer had met with UBS and arranged the deal and completed authentication through the submission of a certified copy. 459During the course of the following month, Mr Wall contacted a number of overseas bankers involved in the purchase and sale of commodities in relation to the possible sale of the Platinum Certificate. 460On 30 November 1994, under the letterhead " Hamock Investments Pty Limited ", Mr Hamod forwarded to Mr Wall by facsimile a letter, stating, " [o]n behalf of our group ... it is our intention to appoint you as our representative and agent " for the sale of the Platinum Certificate. Enclosed with the facsimile was an authority (also under the Hamock Investments letterhead) in favour of Mr Wall to sell the Platinum Certificate, signed by Mr Hamod over the words " the trustee and holder ". 461On 5 December 1994, Mr Wall and Mr Page (another Utilis director) met with Mr Hamod, Mr Balding and Mr Lymbery in Nowra. At the meeting, Mr Hamod produced a Power of Attorney signed by Mr Damanik, dated 13 June 1994 in favour of Mr O'Dowd as confirmation of his authority to sell the Platinum Certificate. The following conversation ensued: "[Mr Wall] said 'These documents appear to appoint O'DOWD as the mandate to sell.' HAMOD said 'I am the bearer and I have a lien and in the last fortnight I have come to an agreement with [Galaxy] and O'DOWD is out of it'." 462Hamod then produced a Buy/Sell agreement which appeared to have been signed by Mr O'Dowd. Clauses 5 and 6 of the agreement were in the following terms: "5. THE SELLER AGREES TO PROVIDE THE ORIGINAL OF THE [PLATINUM CERTIFICATE] FOR AUTHENTICATION AND VALIDATION AT THE PREMISES OF THE BUYER AND OR THE PREMISES OF THE SELLER. 6. SHOULD THE BUYER WISH TO TAKE POSSESSION OF THE CERTIFICATE FOR AUTHENTICATION AND VALIDATION AT OTHER LOCATION, THEN THE BUYER AGREES TO PAY A DEPOSIT OF USD 50 MILLION FOR THE EXCHANGE OF THE CERTIFICATE." 463Mr Hamod informed Mr Wall that the value of the Platinum Certificate was about $US60 B and confirmed that the " tonnage " was " 4595 ". Later during that meeting, the following conversation occurred: "[Mr Wall] said 'What timetable do you expect and what of the up-front fees? (as I had read in the buy/sell agreement handed to me Item 6 that the [Platinum Certificate] would not be released without funds being paid first, US 50 million).' HAMOD said 'If we release the originals, we want payment!' [Mr Wall] said 'Up-front?' HAMOD said 'Of course.' HAMOD then said 'We have people in Canada talking to the Israeli government and we want it sold as quickly as soon as possible. I am too busy organising myself the sugar purchase and the Iranians who want me for an important government contract. You are the captain of the ship and will have to handle the sale for me. I have spoken to Queen Elizabeth's mandate and King Fiesal who is a big buyer but O'DOWD stuffed it up and you will have to do it.'" (at para (17)) 464Mr Wall stated that during this meeting he became concerned as to the authenticity of the Platinum Certificate and Mr Hamod's intentions and on 6 December 1994, he telephoned UBS and made an enquiry about the Platinum Certificate. On 7 December 1994, Mr Wall met with Mr Ludowici at UBS' office in Sydney and provided him with photocopies of documents received from Mr Hamod. I have already referred to the steps taken by Mr Ludowici and Mr Wall's agreement that he would support any police action. 465On 12 December 1994, Mr Ludowici contacted the Fraud Enforcement Agency. 466Mr Wall said that during a telephone call with Mr Hamod at this time, Mr Hamod said that the " up-front fees were to be paid outside the contract ". Mr Wall said that as a result, he expected " the text of the contract " that Mr Hamod was going to prepare " would not mention the up-front fee ". 467On 31 December 1994, Mr Wall received a facsimile from Mr Hamod, which contained details of the new contract. Mr Wall noted that the up-front fee clause in cl 6 of the Buy/Sell agreement he had seen on 5 December had been removed from the contract. 468In early January 1995, Mr Hamod informed Mr Wall that he had met with the retired secretary and deputy president of UBS AG, " Maria Pogi " (also referred to as Marie Bolgia), and several other signatories of the Platinum Certificate (at para (28)). Mr Hamod again attested to his right to sell the Platinum Certificate. 469Mr Wall said that on about 13 January 1995, he had a number of conversations with Mr Balding, arranging for the sale of the Platinum Certificate. On some of those occasions, Mr Wall was aware that Mr Hamod was in the room with Mr Balding, as he could hear him talking in the background. Mr Wall stated (at para (34)) that on 17 January 1995, he and Mr Balding had the following telephone conversation in which they discussed the time needed to authenticate the Platinum Certificate: "[Mr Wall] said to BALDING, 'There is some confusion about the amount of the up-front fee as the contract says one amount and TEH is told another (BY HAMOD)?' BALDING said, 'I will get back to you can you suggest an amount?' [Mr Wall] said 'That is not up to me [as] it is your call.' BALDING asked 'What do you think?' [Mr Wall] said 'It's usually one percent.' BALDING said 'I will talk to HAMOD and telephone you back ... The up-front payment would come to around Five hundred and sixty million.' [Mr Wall] said 'That was steep'. He said 'That's what 1% is.' [Mr Wall] said 'Do the calculation and send me a letter and I will arrange the bank draft, the buyer just wants to know the amount.'" 470Following that conversation, Mr Wall received a facsimile from Mr Balding which was, in effect, a 'settlement statement' in respect of the Platinum Certificate. The facsimile set out " calculations and bank co-ordinates as requested " and the market value and the discounted value of the Platinum Certificate. The statement also set out the " Agreed 1% of Discounted Market Value " nominated as US $418,347,853 and AUS $548,663,209 respectively. Details of the receiving bank (the Advance Bank) and account name and number were specified. The facsimile required that the bank draft of the paying bank be drawn on a bank located in Sydney and that the draft be in Australian dollars. A draft copy of the Buy/Sell agreement indicating the bank co-ordinates for Hamock Investments was attached. The facsimile concluded: "Would you please confirm receipt of the above and notify us of the meeting place and time for Thursday." 471On 18 January 1995, Mr Wall telephoned Mr Balding and told him " the amount was too large and ... we needed to negotiate a more reasonable up-front payment ". The conversation continued: "[Mr Wall]: Now I've got a figure but what figure will we accept [Mr Balding]: Well what I did yesterday, I took 1% and worked it out [Mr Balding]: Now they're unhappy about that or don't agree [Mr Wall]: Well it's a lot of money, it's - you know these are risks funds, can you talk to Tony about it ... these are just the issues - 1. they want to get it into a sensible amount of money 2. the KTT for these funds will be made out to Hamock Investments - will come through on Friday morning at about 11 am our time ... and they want to give the bank draft at the same time as the contract ..." 472Towards the end of this conversation, the discussion turned again to the up-front payment, which Mr Wall referred to in the conversation as " risk funds prior to authentication ": "[Mr Balding]: Okay and they won't give you any idea what they are prepared to put up [Mr Wall]: Well my view is it's somewhere between 50 and 500 [Mr Balding]: Australian dollars [Mr Wall]: U.S. ... [Mr Wall]: Well its up to you and Tony and I'll sort it out tonight with them and get it all [Mr Balding]: They're not - whilst they're alarmed at the amount they're not sort of bucking it [Mr Wall]: No they're not - they said yes 1% is normal but this is risk funds prior to authentication so they see it as risk funds - so they are saying - what's a sensible numbers - only you and Tony can know what that is - its a lot of money" 473Mr Wall had another telephone call from Mr Balding on 18 January 1995: "[Mr Balding] said, 'Will the buyer agree to a draft of 250 million dollars?' [Mr Wall] said, 'Australian?' [Mr Balding] said, 'Yes.' [Mr Wall] said, 'Yes that would be acceptable for the release of the [Platinum Certificate].'" 474Mr Wall had a telephone conversation with Mr Hamod on 19 January 1995, as follows: "HAMOD said 'I went personally to authenticate with the signatories, Dr HAGGEN and Dr FREYER. They are genuine and in bearer form. I do not want to cause world war three as governments are involved and the notes are subject to secrecy arrangements. The Federal Police have been advised as to my activities and have seen all the documents. I do not want the money as I have been offered the top job to be appointed mandate for the ICCT International Commerce Bank of China.'" 475On 20 December 1995, as well as meeting at the coffee shop, Mr Wall had two meetings with Mr Hamod, Mr Balding and others relating to the sale of the Platinum Certificate. All three occasions were subject to an authorised police intercept. The following is derived from those transcripts, the contents of which were not disputed. 476At the meeting in UBS' offices, Mr Wall stated that the buyer wished to view the original Platinum Certificate. Mr Hamod said that the original could be viewed but not at UBS. He also said that the buyer had to sign the Buy/Sell agreement before he sighted the original Platinum Certificate. Mr Hamod repeated that he wanted the " agreement procedure " to be adhered to. He reiterated he had had the signatures on the Platinum Certificate verified by retired officers from UBS and that it was genuine. He said the certificates were registered with the World Bank and with the United Nations. He added: "... we would ask that the buyer to satisfy himself before they even are contemplating putting any money ... that's the procedure that must be adhered to." 477Mr Hamod also insisted that the buyer was to satisfy himself as to the authenticity of the Platinum Certificate, that he was not asking for a deposit and that until the buyer was satisfied as to the authenticity of the document " we should not even be talking about deposit ". 478The parties later met at the offices of the National Australia Bank. At an early point in that meeting, Mr Hamod said that the deposit was not required before the buyer satisfied himself: "... this is the original of the certificate. It's part of the agreement that the buyer gotta demonstrate capability that they are capable to authenticate ..." 479Mr Hamod said: "... we don't want to talk deposit before we discuss the procedures of the agreement ... We don't want your money. We want to do transaction in ... the most professional manner." 480On the appeal, Mr Hamod placed particular emphasis upon the exchanges during the course of these meetings, contending that at no stage did he demand an up-front fee. By way of example, he pointed out that during the conversation in the coffee shop, he said that everything he had " to say verbally " was " in the agreement " and that there was a " special procedure ". 481It is apparent from the transcript of the intercepted conversations that Mr Hamod was insistent that the initial meeting with the buyer not take place at UBS. He also asked whether any UBS officer was going to be present at the meeting. When he was informed that the UBS officer was going to be there, Mr Hamod said that he would refuse to talk about money or accepting money before the buyer authenticated the Platinum Certificate. He repeated this later in the conversation. The relevance of the content of the conversation on 20 January is considered below.
Mr Teh's evidence 482Mr Teh also gave evidence which was relevantly to the same effect as Mr Wall's evidence, hence, reference is only made to those aspects of the evidence not discussed in relation to Mr Wall's evidence. 483After the first meeting with Mr Hamod on 24 October 1994, Mr Teh expressed doubts as to the validity of the Platinum Certificate. After that meeting, however, the arrangement between him and Mr Wall was that he would deal with Mr Hamod in relation to the sugar contracts (in this regard, nothing came to fruition as Mr Hamod could not provide proof of his funds) and Mr Wall was to deal with the sale of the Platinum Certificate. However, on 18 October 1994, during a telephone conversation about the sugar deal, Mr Hamod asked whether Mr Teh had a buyer for 2700 tonnes of platinum from Korea. Mr Teh told him to speak to Mr Wall about gold and platinum. 484Mr Teh said that on 12 November 1994, Mr Hamod telephoned him and said " If I present the original documents to the buyer I request a KKT payment from the buyer to my account for 50 million US ". Mr Teh said that he was surprised at this request, which he understood was clearly for an up-front fee, so he wrote it down to discuss with Mr Wall. 485Mr Teh said that on 18 January 1995, he listened in on a conversation between Mr Wall and Mr Balding where Mr Balding asked, inter alia, " How are you going to pay the [$250 M] " and Mr Wall replied " By bank draft through Chase Manhattan ". He also heard either Mr Balding or Mr Hamod say that he would not bring the original Platinum Certificate into UBS' office. 486On 19 January 1995, Mr Hamod telephoned Mr Teh twice looking for Mr Wall whom he wanted to talk to " immediately ", as he wanted a copy of the " custodial safe keeping text ". During the second conversation, Mr Hamod said: "If I don't get the text I am not coming to the meeting. I will only be bringing photocopies certified by my lawyer, bank manager and accountant. I can not bring the original to UBS for Security reasons." 487Mr Teh gave evidence that he and Mr Wall met with Detective Senior Constable Day and other police officers on the morning of 20 January 1995. He also said that he was aware the meetings with Mr Hamod on 20 January were being recorded and confirmed the correctness of the transcript of those conversations.
The intercepted conversations of 20 January 1995 488Mr Hamod placed considerable emphasis on the intercepted record of his meeting with Mr Wall and others on 20 January 1995. His central argument in respect of this meeting was that he was emphatic that no money was to be paid to him until the buyer had authenticated the Platinum Certificate. He referred to various extracts from the taped record where that insistence was apparent. The following are the most prominent of those extracts. 489In the early part of the recorded conversation Mr Hamod twice referred to " the procedure ". Mr Hamod asked whether the buyer had checked the photocopy. When told that the buyer first wanted to meet, Mr Hamod responded: "Well the agreement is the procedure ... and everything I have to say verbally in in, in the agreement." 490Mr Hamod said he " would refuse to talk about money or accepting money before buyer ... [balance unable to be transcribed] ". 491Mr Hamod also said: "We cannot give names and places to where we authenticated but we are satisfied it is original. We have a letter from the last owner." 492The next portion of the recorded conversation took place in UBS' boardroom. The following persons were in attendance: Mr Muhlbauer, Mr Wall, Mr Biaggi, Mr Hamod, Mr Balding, Mr Lees, Mr Done and Mr Teh. 493In response to a request to sight the original certificate, Mr Balding, Mr Hamod's accountant, said they had a certified copy of the Platinum Certificate. Mr Hamod said that " the original is down the road, it is in safekeeping, we don't walk in the street with this ". 494When Mr Wall stated that he wanted to get " a couple of things clear " and referred to " four thousand five hundred " (undoubtedly intending to refer to the quantity of platinum referred to in the Platinum Certificate), Mr Hamod responded: "That's have to be validated by the bank ... It has to be confirmed by the bank because, you now, we don't want to mislead because there is interest rate to be added. ... And you know, and there is charges to come out of it so any official statement now would be official statement, I don't want to mislead so it must be validated by the bank." 495Mr Hamod reiterated that he was not asking for a deposit and said: "But we want the buyer to satisfy themselves, authenticate, satisfy themselves and then come in to exchange original for irrevocable bank guarantee with the schedules of the payments, er, so I can discharge my job as a trustee in an honourable manner." ( 496Mr Muhlbauer asked Mr Wall whether the amounts they had discussed earlier had been agreed upon. Mr Hamod answered, " No ". The following statements were then made: "[Mr Wall]: Well, this is what he's saying, that's right. [Mr Balding]: If, if, if you insist on paying a deposit, if you insist on paying a deposit, we're not asking for a deposit, if you insist on paying a deposit, that amount that [Mr Wall] indicated is all right by us, all right? But we are not asking for a deposit at this stage. We would hold that deposit in an escrow or trust account anyway, we wouldn't take it, as a guarantee, and if, ah, if, if we would be quite happy to hold it ... [Mr Hamod]: the most important ... [Mr Balding]: ... hold it in ... [Mr Hamod]: ... the most important ... [Mr Balding]: ... the same account as the ... [Mr Hamod]: ... point of that, agreement must signed. [Mr Balding]: ... the, ah, (inaudible) ... [Mr Hamod]: The second point after the agreement that the buyer come in with the letter saying he's satisfied ... [Mr Muhlbauer]: Mm hm." 497Mr Hamod further said: "Please, if you respect our view, we must not be discussing money before the buyer satisfied himself and before you bank confirm." 498In the next part of the taped conversation, recorded at the National Bank premises, Mr Hamod said: "I would really like us to discuss agreement before (can't decipher) deposit, because the deposit is not required ... ... before the buyer satisfy himself that this is the certificate and this is the original of the certificate. It's part of the agreement that the buyer gotta demonstrate capability that they are capable to authenticate."
Detective Senior Constable Day's involvement in Mr Hamod's arrest 499Detective Senior Constable Day was first briefed in relation to " Operation Cleggars " on 17 January 1995 and interviewed Mr Wall, Mr Teh and Mr Page from Utilis, as well as Mr Muhlbauer from UBS. Interviews were also conducted the following day with Messrs Wall and Muhlbauer, as well as with the undercover police officer who posed as the buyer in the transaction on 20 January. On 20 January, arrangements were made to record conversations at the meeting that was expected to take place with Mr Hamod. 500The arrest occurred at about 1.45 pm during the course of the meeting at the offices of NAB. At the point of arrest, Detective Senior Constable Day said to Mr Hamod: "I believe a fraudulent act has taken place here today." He then said to Mr Hamod: "Mr Hamod you are under arrest for attempting to sell a fraudulent bearer's certificate here today." Mr Hamod asked: "What are the charges against me?" 501Detective Senior Constable Day told him that the matter would be discussed with him when they got to the offices of the Fraud Enforcement Agency. The original of the Platinum Certificate was located during a search of Mr Hamod's bag, which occurred in the NAB office just after Mr Hamod was placed under arrest.
The Record of Interview 502Detective Senior Constable Day conducted a Record of Interview with Mr Hamod at the premises of the Fraud Enforcement Agency, commencing just after 4 pm on 20 January. At the conclusion of the Record of Interview, Detective Senior Constable Day informed Mr Hamod that he would be charged with " use false instrument and obtain benefit by deception ". 503The Record of Interview was lengthy. Some of it was responsive to the questions asked, although much of it involved an elaborate discursus by Mr Hamod of things that he said had occurred. Some parts of the Record of Interview are relevant to the malicious prosecution claim. However, rather than bifurcate consideration of the Record of Interview, I will refer in this portion of the judgment to so much as is relevant to both claims. 504At an early point in the Record of Interview, Detective Senior Constable Day sought confirmation from Mr Hamod that he had been told he was under arrest. Mr Hamod equivocated as to whether he had been told by Detective Senior Constable Day at the offices of NAB that he was under arrest and stated in answer to Q 28 that he did not know if he was under arrest. Detective Senior Constable Day told him that he was, to which Mr Hamod responded in answer to Q 29, " If I am under arrest, what is the charges? ". Detective Senior Constable Day said that he had told him what he was under arrest for, namely, " this fraudulent activity ". Mr Hamod responded in answer to Q 32 that, " I would not admit the fact that they were fraudulent ". 505Mr Hamod stated that he had assumed the conversations he had had that day were recorded and that he only came to Sydney because Mr Wall was threatening to sue him. Later in the Record of Interview, he said he considered that " something fishy " was going on that day. He also revealed that the telephone calls between himself and/or Mr Balding with Mr Wall had been taped. He said that according to the recorded conversations, Mr Wall stated that UBS had already authenticated and validated the Platinum Certificate. He said it was for that reason that he insisted upon a letter from UBS to say that the Platinum Certificate was valid. 506Over the many pages of the Record of Interview, Mr Hamod said that Mr O'Dowd had given him the Platinum Certificate and that Mr O'Dowd told him he represented the government of China. He said that while they were in Europe, Mr Clarke reported daily to Mr O'Dowd who reported to the Chinese Secret Police or Chinese Secret Authority. There were other references to the Chinese government. 507He said that Drs Hagan and Frey, whom he identified as former commissioners of UBS, were acting for a buyer and had authenticated the Platinum Certificate. He said they also told him " off the record " that the buyer was UBS AG. 508He said that the Platinum Certificate was " designed and written " in such a way that if it came into the possession of a " stranger ", they would believe it to be a fake. 509He said that Mr O'Dowd had told him that the Platinum Certificate was subject to a " secret treaty by the 'G-7' countries " and the United Nations and that it " represented Federal Reserve Number 1 ". He said that he had checked the authenticity of the Platinum Certificate with several other institutions. A professor in New York, possibly named Bernard O'Rourke, " took it to the United Nations building and confirmed it through the United Nations building ". 510Importantly, Mr Hamod insisted, throughout the Record of Interview, that he had not requested an up-front fee and denied that his accountant, Mr Balding, had done so. He said that his instructions to his accountant were not to accept any money before the buyer presented a letter that he had authenticated and satisfied himself of the authenticity of the Platinum Certificate. He said that Mr Wall had offered the payment of money up-front and had done so in circumstances where Mr Wall had said that the Platinum Certificate had been authenticated. He insisted that he believed that the Platinum Certificate was real. 511Mr Hamod also insisted that he was not attempting to sell the Platinum Certificate to Mr Wall that day. All he was attempting to do was to identify the buyer by having the buyer sign the agreement. He said that the Buy/Sell agreement was not an agreement to sell. It was an agreement to " adhere to procedure, government to government ". He spoke in terms: " the only way to follow proper sale for these certificates " . Had the buyer signed, that would have confirmed to him that the buyer " represented the Central Bank of Switzerland ". He also said that " they " (presumably Mr Wall), had claimed that they had authenticated a faxed copy of the Platinum Certificate at UBS' head office in Switzerland. He made several references to there being a strict procedure for the authentication and validation of the Platinum Certificate and that he would not accept " one dollar " until that occurred. 512Mr Hamod explained why he had refused to produce the Platinum Certificate at UBS' offices. He said this was because he had: "... given some undertaking to some member of the board of ... UBS that we would never produce the original of the document inside UBS." 513He said he had indirect access to the chairman of UBS, " Mr Senn ", through his " partners in Canada ". He said that if the Platinum Certificate was produced inside UBS, it would place UBS " in a very difficult situation ". If UBS accepted the Platinum Certificate was valid, it would have to produce " 60, 80 billion ... within 24 hours or they are bankrupt ". Alternatively, if UBS denied its authenticity, then: "... press the button, and call the cops, and cause a war with China. We don't want to cause a war. We want to cause peace." 514Mr Hamod contended that he had only come to Sydney at Mr Wall's insistence and he realised that he had been misled by Mr Wall and UBS. He said that UBS did not want to pay for the Platinum Certificate and had wanted to recover the Certificate without paying for it by going to the police and falsely reporting that he was trying to sell a fake certificate. Mr Hamod also said that he had sought police protection because Mr O'Dowd was threatening to kidnap his family. This was a reference to the report he made to Nowra police in October 1994. 515In his answer to Q 18, Mr Hamod agreed that he had gone to a meeting at the bank where there were people " who claimed that they were representing a buyer ". When asked what they were buying, Mr Hamod replied as follows: "They claimed that they have authenticated a faxed copy of that certificate, and they have verified it in the bank head office at Switzerland, and they told me they would like to buy the certificate from us. And we have sent a written agreement with all the procedures for their understanding of the procedures and all of the information they relate to the certificate. And I've asked them during that meeting as to whether they have received copies of that agreement, and they said yes they have. And I said, 'Well, are you happy with it?' and they said yes they were." 516In answer to Q 46, Mr Hamod said (in part): "When I was satisfied with that, then I've accepted the job and I wrote the letter of acceptance to Mr O'Dowd and I've proceeded with the job as his representative and mandate, they call it, organising sales and organising meetings and organising procedures of writing the procedures to how we should go on about the sales of the certificate ..." 517Mr Hamod said he believed that the Platinum Certificate was " for real ". He asserted in answer to Q 325 that he was not interested in selling the Platinum Certificate. He said that certain strict procedures had been put in place for the authentication or verification of the Platinum Certificate and he would not be prepared to accept " one dollar " until that occurred. He said that he instructed Mr Wall, " You shall not accept deposit before he give you a letter from [UBS AG] signed by [UBS AG] that the certificate is for real ". 518Mr Hamod was asked at Q 379 why he could not have sought to authenticate the Platinum Certificate himself. He answered " I cannot authenticate it myself because who do I go to authenticate it? To which person do I go to? To the director? " As noted by his Honour, this answer was to be contrasted with the several assertions by Mr Hamod in his statement as to the various steps he had taken in Europe to have the Platinum Certificate authenticated and his claims that several persons had authenticated it. 519Mr Hamod also said that he could not authenticate the Platinum Certificate. He said that he could not do so with UBS AG as he did not speak German, French or Italian, the languages spoken within UBS, but that he had checked it indirectly " on NATO's computer through a friend in Germany ". He reiterated that he had checked it with the United Nations and a retired officer of the World Bank and was satisfied that it was genuine. He said that it had to be authenticated " again and again " until " it gets into a bank ". 520The Record of Interview continued: "Q380: Well you described - - - A: There's 3,000, 4,000 people inside UBS. You could be there for weeks and spending $15,000 on the phone to get the right person and they keep shoving you around. I did try early in the piece, way back in April somehow I tried to talk to UBS direct, and UBS, they German or they speak French or they speak Italian. I don't speak French, I don't speak German, I don't speak Italian. I speak English and Arabic. Q 381: But you did say earlier on that it was easy to - all you had to do was phone UBS up, give them the numbers - - - A: I have checked it - I have checked this certificate on NATO's computer indirectly after - on NATO's computer through a friend in Germany, Germany, is registered here. I have checked it in United Nation, I have checked it with World Bank. I have checked it with a retired officer, I was satisfied that the certificate was genuine, but since O'Dowd had left me stranded in Geneva, O'Dowd might have written to the bank and cancelled the certificate. O'Dowd may have written to the bank and transferred the certificate. O'Dowd may have written to the bank and said that I stole the certificate. So I had to authenticate it again. And again and again and again, you got to keep authenticating until that certificate gets in the hand of a trustee bank. You might have to authenticate it 10 times, 15 times until it gets into a bank." 521When asked at the end of the Record of Interview whether he had anything more to say, Mr Hamod gave a lengthy response, in which he asserted that he was " a victim of unpaid wages ", he " claimed a lien " and was " acting in a trustee position ". He said he had an agreement in writing from Mr O'Dowd and that he had " acted in good faith ". He did not act with an " intention to defraud ". He denied that he had " requested money " from anyone or " asked for fees or anything up-front ". He had put a procedure in the agreement for a " genuine government buyer, not an individual buyer ". He said that if " UBS were a genuine buyer UBS would have signed the agreement ". 522This last statement was, of course, at odds with all the conversations Mr Wall said he had with Mr Hamod in relation to finding a buyer. It is also at odds with assertions Mr Hamod made in the statement he gave Detective Sergeant Eastham, of Nowra police, discussed in Section (8) (malicious prosecution). 523He said that he had been recording telephone conversations from the previous Sunday onwards, as he believed that " something fishy " was " going on ". He believed that UBS had misled him and that Mr Wall was " in collusion with UBS ". He believed that UBS had misled the police. He said he had done nothing wrong and if the " documents were fake the Swiss Government would have gaoled " him before he left Switzerland. He reiterated that he had not broken the law. 524There was no reference in the Record of Interview to Galaxy. Further, an examination of the recorded conversations between Mr Hamod, Mr Balding and Mr Wall in the days preceding the arrest, does not reveal any statement by Mr Wall that UBS had already authenticated the Platinum Certificate; nor any statement that indicated that Mr Wall threatened to sue Mr Hamod; nor any statement indicating that it was Mr Wall who initiated or offered the up-front fee. Indeed, as to the last of these, the recorded conversations indicate that Mr Balding was proceeding on the basis that a fee was payable at the time that a certified copy of the Platinum Certificate was handed over for the purposes of authentication.
Detective Senior Constable Day's fact sheet 525Detective Senior Constable Day prepared a fact sheet dated 6 February 1995, upon which his Honour relied. That document was a slightly expanded form of the fact sheet that Detective Senior Constable Day prepared for the purposes of bringing Mr Hamod before the court on 21 January 1995. The earlier document did not make reference to a facsimile dated 17 January 1995 that Mr Balding had forwarded to Mr Wall, to which reference is made above at [470]. Given its date, the briefings the police had with Mr Wall prior to 20 January and the contents of the first fact sheet, it is apparent that Mr Wall either showed the facsimile to police or told them about it. The facsimile is also relevant to the malicious prosecution claim. 526Detective Senior Constable Day's fact sheet recorded that following receipt of this facsimile, there were a number of telephone calls between Mr Balding on behalf of Mr Hamod and staff of Utilis, in which Mr Hamod agreed that the up-front fee should be 0.5 per cent of the total value of the Platinum Certificate, that is, $250 M. Importantly, the fact sheet also recorded that Mr Hamod denied ever requesting an up-front payment for the sale of the Platinum Certificate. It further stated that the police would allege that Mr Hamod had negotiated a reduction in the value of the up-front payment from a figure in excess of $500 M to $250 M. The fact sheet noted that conversations concerning the payment of that money and the final settlement had been recorded by way of a listening device and that evidence would be led that Mr Hamod had provided a banking facility to accept the money on his behalf. This was borne out by other evidence to which reference is made in section (8) (the malicious prosecution claim).
The trial judge's reasons 527As to the first requirement of lawful arrest, his Honour found that Detective Senior Constable Day made the decision to arrest upon sound information and for the purposes for which the power to arrest exists. His Honour encapsulated the information available to Detective Senior Constable Day at the time of the arrest as follows: "86 The material that is contained in the police brief ... includes considerable information that came to the attention of Det Day and other members of Operation Cleggars prior to 20 January 1995. The material in Mr Wall's statement is of particular relevance. This material demonstrates that Mr Hamod was proposing to negotiate the sale of the certificate and that Det Day was entitled to suspect at the date of Mr Hamod's arrest that it was a fake or a forgery. This is also supported by the information provided to Det Day or his colleagues prior to Mr Hamod's arrest by Mr Ludowici and Mr Muhlbauer. Moreover, the meetings in the UBS boardroom and at the National Australia Bank on the day of Mr Hamod's arrest provided material to Det Day that was all supportive of the reasonableness of any suspicion that Det Day might be thought to have formed, including that Mr Hamod knew that statements he had made were false or misleading in a material particular." 528None of these findings is directly challenged by Mr Hamod. The only challenge is a global one, namely, that his Honour erred in finding the claim of false arrest not to have been made out. 529As to the second requirement for a lawful arrest, his Honour, at [90], set out the words Detective Senior Constable Day said he used at the time of arrest, namely: "'Mr Hamod you are under arrest for attempting to sell a fraudulent bearers certificate here today. I want you to understand that you are not obliged to say anything further about this matter unless you wish to do so, but whatever you say will be recorded and may later be used in evidence. Do you understand that?' He said. 'Yes'." 530Detective Sergeant Riddle, the police officer who accompanied Detective Senior Constable Day at the time of arrest said in his statement of evidence that he heard Detective Day make that statement. In addition, Detective Sergeant Riddle said that following the interview, he heard Detective Day say: "Mr Hamod you will shortly be taken to the Sydney Police Station and [sic] where you will be charged with use false instrument and obtain benefit by deception. Do you understand that?" and Mr Hamod is said to have replied: "Is anybody else being charged?" 531Mr Hamod was formally charged that evening with the three offences set out above in section (1) at [7]. 532Harrison J rejected the allegation that Mr Hamod was not made aware of the charges against him until March 1997, some two years after his arrest, when the magistrate hearing the criminal charges asked for their definition. In the absence of any indication by Mr Hamod as to what he was referring to, I can only assume that this is a reference to the exchange between the magistrate and the Crown prosecutor in relation to the charge under s 300 set out above in section (3) at [248] ff. In any event, his Honour found, at [93], this could simply not be the case, given that the news media reporting of Mr Hamod's appearance in court on 21 January 1995 included reference to the subject matter of the charges. 533His Honour also referred, at [94]-[95], to numerous authorities to support the proposition that, once informed by UBS of their belief that Mr Hamod was negotiating the sale of a fraudulent document, it was Detective Senior Constable Day's duty to investigate the allegations, which ultimately concluded in Mr Hamod's arrest. 534His Honour observed that the authorities were reviewed in detail in State of NSW v Tyszyk [2008] NSWCA 107 at [106]-[111]. I do not propose to set out the principles again. They were correctly stated by Harrison J and are all to the effect that I have stated.
Mr Hamod's submissions 535Notwithstanding the wide formulation of ground 15, Mr Hamod's challenge to his Honour's dismissal of the claims for false arrest and imprisonment was confined to a challenge that his Honour erred in finding that the police had reasonable suspicion to arrest him. There was no separate challenge to the dismissal of the false imprisonment claim, although, if the challenge to the dismissal of the false arrest claim is made out, the false imprisonment claim would follow. 536Mr Hamod contended that his Honour should have found that there never was a reasonable suspicion to have arrested him, having regard to the following supposed " incontrovertible facts ". 537First, the Platinum Certificate in its entirety had never been sent to UBS AG prior to 20 January 1995. Only one photocopied page of the document had been sent. 538Second, the police must have, by inference, been aware, either by viewing the COPS system or from enquiries that would have been made with the Federal Police consistent with Detective Sergeant Eastham's diary entry of 26 October 1994, that Mr Hamod had informed the police that he was in possession of the Platinum Certificate. The force of this, according to Mr Hamod, was the unlikelihood that a person who was about to commit a substantial fraud would seek assistance from the police. Mr Hamod contended that his attendance upon the police at that time to report the threat to his family was consistent with innocence and inconsistent with any reasonable suspicion that he may have committed an offence. 539Third, Detective Sergeant Eastham's notes made a reference to the head of Interpol, Mr Wong Chi Mo (South-East Asia) and Lynne Walker, Federal Police International Division Canberra. 540Fourth, in a related submission to his second proposition, Mr Hamod contended that it defied imagination that the police would not have investigated Mr Hamod's criminal background, including by having access to the COPS system. He contended that the COPS report would have been completely inconsistent with the information conveyed to police by Mr Wall and UBS. Mr Hamod complained that both the trial judge and the State had completely ignored his presentation to police in late October 1994, in which he had made a full and frank disclosure as to " what was going on in his life at that time ", including detailed information regarding the Platinum Certificate. 541Fifth, he contended that the telephone calls made to set up the interest in a meeting were made between Mr Wall and Mr Balding, not by him. 542Sixth, Mr Hamod contended it was clear from his statement of evidence in the proceedings at para (529), together with his Record of Interview, that the police had not formulated a charge as at the time of arrest. He argued that the charge read to him did not reflect the charges the subject of the information laid against him. He submitted that the delay in perfecting and articulating the charges was such that it was open to his Honour to find that he was arrested in circumstances where the police may have had a suspicion, but by no means a reasonable one. 543Seventh, Mr Hamod complained that the matters pleaded in paras (19)-(25) of the sixth amended statement of claim were also set out in his statement of evidence and were not dealt with by the trial judge. He contended that his Honour was not entitled to form the view that the prosecutor had held a reasonable suspicion absent a thorough consideration of his version of what occurred prior to arrest and his first visit to the police station seeking protection. 544Mr Hamod's broad invitation to have regard to his Record of Interview and his statement, and his complaint that his Honour failed to assess his evidence as to the matters that occurred prior to his arrest, placed this Court in the position where it has been required to sift, sort and analyse a vast quantity of material, without any focused assistance from the parties. The Court also had to decide how much of that material was necessary to be included in this judgment, so as to properly support the reasoning. Given the vast volume of material involved, even reducing it to its bare minimum has resulted in a judgment that is longer than would have been the case had the arguments, in respect of this ground at least, been more focused.
Was Mr Hamod's arrest lawful? 545As to Mr Hamod's first argument, this presumably is a reference to the one page sent by Mr Ludowici to UBS AG. On that assumption, the submission is correct, but does not assist Mr Hamod. The page that was sent was the front page that bore the logo and other supposedly official references. Mr Schicker, of UBS AG, considered that the front page itself demonstrate that the document was a " fantasy ". Prior to the arrest, the police sought additional information from UBS as to the bases upon which it contended that the Platinum Certificate was not genuine. That was an appropriate and precautionary enquiry for the police to make. The additional information provided cogent material to the police that the Platinum Certificate was not genuine. 546The second and fourth arguments advanced by Mr Hamod, as I have already said, formed his central thesis that there was no basis for a reasonable suspicion that he had committed an offence, because in October 1994, Mr Hamod had presented himself to Nowra police and informed them of the threat to his family because of his possession of the Platinum Certificate. This submission, articulated in the various ways referred to, required an acceptance of at least the following. First, that the arresting officers were aware of the COPS entry made at the time of his complaint to Nowra police prior to the arrest. That was not established on the evidence. 547Secondly, that the conduct of a person who went to police some months before his arrest, complaining of threats to his family because of his possession of the Platinum Certificate, was inconsistent with intended criminal behaviour and, in particular, the commission of a substantial fraud using the very documentation he had shown to police. Whilst such conduct may have been inconsistent with the intended criminal behaviour, it was not the only inference that could have been drawn. Such conduct is as consistent with a genuine concern for the safety of his family. In this regard, Detective Sergeant Eastham's evidence was that Mr Hamod had said that his concern was for his family and that threats had previously been made to him personally, but that he could look after himself. Such conduct might also have been consistent with a plan to cause difficulties for Mr O'Dowd, who denied making any threats, or pre-empt any complaints Mr O'Dowd might make. Whatever inference might be drawn, Mr Hamod's report to Nowra police was certainly not sufficient to displace the reasonable suspicion otherwise held by the police. 548In any event, the complete answer to this submission is that there was no evidence that Detective Senior Constable Day knew about the report to the Nowra police prior to Mr Hamod's arrest. The submission extended to an assertion that because this information was in the possession of the police, Detective Senior Constable Day's subjective state of mind should have been determined by reference to that information. However, a person's subjective state of mind cannot be proved by an assertion that the person had constructive knowledge of certain information and Mr Hamod did not rely upon Detective Senior Constable Day's ignorance of the COPS entry as evidence of a failure to make reasonable enquiries. 549As to the allegation that even if Detective Senior Constable Day had a suspicion it was not reasonable because of the delay in perfecting and articulating the charges, it is met entirely by the evidence that the charge sheet dated 20 January 1995 contained the three charges under s 300 and s 178BB; and as his Honour pointed out, newspaper articles the following day reported that those were the allegations. The fact that much later one charge was withdrawn and one other was reformulated does not of itself undermine the reasonableness of the suspicion a police officer might have. In this case, the evidence that Detective Senior Constable Day had from Mr Wall, Mr Ludowici and Mr Muhlbauer prior to 20 January 1995 was sufficient to give rise to a reasonable suspicion on his part, that Mr Hamod was attempting to sell the Platinum Certificate as a genuine document, giving the bearer title to a quantity of platinum valued at US $60 B against all but the true owner, when in fact, the Platinum Certificate was bogus. 550There is one matter that does require further consideration in relation to the events of 20 January 1995. During the meetings on that day, Mr Hamod insisted that he did not want the payment of any money. He relied on this as evidence that he had no intention of selling the Platinum Certificate or taking any money in respect of it until it had been authenticated. Mr Hamod also pointed this out several times during the course of the Record of Interview. Detective Senior Constable Day referred to this in the fact sheet. 551A denial of criminal conduct in a Record of Interview is hardly a reason to negative a police officer's reasonable suspicion of the commission of an offence. Denials in Records of Interview are commonplace. However, Mr Hamod's arrest had its own twist. In the meeting on 20 January, which was deliberately set up to 'catch' Mr Hamod in the act of selling the Platinum Certificate and requiring an up-front fee, Mr Hamod did not rise to the bait. 552In my opinion, the fact that the operation did not go according to plan was not sufficient to establish that Detective Senior Constable Day did not have the requisite reasonable suspicion. He had been provided with information from UBS and Mr Wall that Mr Hamod had been trying to sell the Platinum Certificate and had demanded an up-front fee. In this regard, Mr Wall had been sent a Buy/Sell agreement and Mr Balding, in the facsimile of 17 January 1995, had set out the parties to whom monies were to be paid, including in respect of the bank draft for $250 M. Although Mr Balding thought Mr Wall was offering to pay a deposit, he was not aware, until a late stage, that there had been conversations between Mr Hamod and Mr Wall to which Mr Balding had not been privy. Detective Senior Constable Day had access to all of that information, as well as information from UBS that the Platinum Certificate was bogus. That information was sufficient, in my opinion, for Detective Senior Constable Day to have a reasonable suspicion that Mr Hamod had engaged in conduct relating to the sale of a fraudulent financial instrument, including payment of an upfront fee. 553Mr Hamod also contended that Detective Senior Constable Day should have conducted a thorough investigation of the matters asserted in paras (19)-(25) of the sixth amended statement of claim (see [429] above). As I understand it, these matters were said to support the submission that Detective Senior Constable Day's suspicion, if held, was not reasonable. This submission overlooks the fact that at the time Mr Hamod asserted some of those matters to Detective Senior Constable Day, he had already been arrested and I have already dealt with the issue relating to Mr Hamod's report to Nowra police. The submission also overlooks the fact that Mr Hamod made no reference to Galaxy in the Record of Interview. 554Enquiries were made of Mr Damanik and Mr O'Dowd after the arrest. Mr Damanik denied any knowledge of Mr Hamod. Mr O'Dowd confirmed aspects of Mr Hamod's story, but specifically stated that they had been warned in Europe that the Platinum Certificate was false. Enquiries were also made of the Federal Police, but those enquiries did not produce any useful information. 555Importantly, however, these were allegations in Mr Hamod's pleading. He bore the legal and evidentiary onus of proving his causes of action. To the extent these matters had any relevance to his cause of action, he adduced no evidence to prove any of those matters, save for the report to Nowra police.
Conclusion as to false arrest and false imprisonment 556In my opinion, Mr Hamod has not established that Harrison J should have found Detective Senior Constable Day did not have reasonable cause to suspect he had committed the offences with which he was charged. 557Mr Hamod also contended that the police had not formulated the charge at the time of arrest. Presumably, this submission seeks to strike at the second requirement for a valid arrest: see [424] above. The submission can be dealt with briefly. I have already referred to the statement Detective Senior Constable Day said he made to Mr Hamod at the time of arrest. His Honour, at [90], before setting out that statement verbatim, held that: "The reasons for the arrest were also in my view adequately and appropriately communicated to Mr Hamod." 558Mr Hamod challenged that finding: see Mr Hamod's written submissions, Part B, Challenges to Finding of Fact , para (148)(2). There was no express challenge to his Honour's finding, at [90], that Detective Senior Constable Day said the words, " I believe a fraudulent act has taken place here today " and " You are under arrest for attempting to sell a fraudulent bearers certificate here today ". Nor is there any challenge to the finding, at [91], that Detective Sergeant Riddle heard these words being used. Although Mr Hamod's counsel's attention was drawn to the absence of challenge to Detective Senior Constable Day's statement during the course of the hearing of the appeal, he did not seek to have his challenge to the first sentence of his Honour's judgment at [90] extend to Detective Day's statement at the time of arrest. 559I have considered whether the Court nonetheless should accept that the challenge extended to Detective Senior Constable Day's statement. One argument in favour of the Court understanding the challenge as extending to the statement set out at [90] of his Honour's judgment is because in Part B of his submissions, Mr Hamod refers to his own evidence as to what was said at the time of the arrest, namely, " You're under arrest for a crime having been committed here today ." 560If that is what was said, it would not be sufficient to convey to Mr Hamod why he was being arrested. However, the problem for Mr Hamod is that his Honour did not find that that is what was said. He made a finding in terms of the statement made by Detective Senior Constable Day. Mr Hamod does not proffer any reason why his Honour erred in accepting Detective Day's version of what was said. 561There is a second reason I have concluded that the Court should not accept that the challenge extends to Detective Senior Constable Day's statement. It is apparent from Mr Hamod's written submissions that he asserts a more stringent requirement as to what information must be given the arrested person than this Court has decided in the cases to which I have referred. Mr Hamod's submission was that: "No explanation as to the precise charge emerged from the record of interview or at all until [he] was eventually charged with the offences that came before the Court. Hence it was false and unlawful." 562As the authorities to which I have referred establish, that is not the correct test. 563In my opinion, ground 15 should be rejected.
Ground 9: His Honour erred by failing to find that the answers given to police by Mr Hamod in the Record of Interview disclosed evidence of an absence of reasonable and probable cause
Ground 12: His Honour erred by questioning or challenging the acquittal of Mr Hamod and the basis for that acquittal being an impermissible process for the purpose of the tort of malicious prosecution (at judgment [64])
Ground 16: His Honour erred by failing to determine that Mr Hamod had proven the tort of malicious prosecution when his Honour excluded the transcript of evidence from the proceedings before Magistrate Horler and further applied the wrong test, namely resorting only to the police brief as opposed to documentation such as the transcript of evidence before Magistrate Horler and exhibits tendered therein relating to the commencement and maintenance of the said prosecution and erred accordingly
Legal principles 564A plaintiff bringing a claim for the tort of malicious prosecution must establish that proceedings of the kind to which the tort relates had been initiated against the plaintiff; that those proceedings had terminated in the plaintiff's favour; that the defendant in initiating or maintaining the proceedings acted maliciously; and that the defendant acted without reasonable and probable cause: see Bullen & Leake, Precedents of Pleading , 3 rd ed (1868) at 350-356, cited with approval in A v New South Wales at [1]. The usual case to which the tort relates is a criminal prosecution and the paradigm circumstance in which the tort arises is where the plaintiff has been acquitted: see A v New South Wales at [57]. That was the case here. 565The identification of the prosecutor in a case of malicious prosecution is of importance, as it is the prosecutor's conduct that must be examined in order to determine whether the elements of malice and reasonable and probable cause have been made out. As I have stated earlier, the trial judge, at [99], identified Detective Senior Constable Day as the prosecutor and the proceedings were conducted on that basis. The State was sued on the basis of its vicarious liability for his conduct. The enquiry as to the prosecutor's conduct is directed to the state of affairs when the prosecution was commenced or, if it is so alleged, the point at which the prosecution is maintained without reasonable and probable cause: see A v New South Wales at [59]. As the Court pointed out in A v New South Wales , the temporal aspect of the enquiry necessarily focuses attention upon the material that was available to the prosecutor when deciding whether to commence or maintain a prosecution. 566In this case, Mr Hamod contended that the prosecution was both commenced and maintained without reasonable or probable cause. The respondents disputed at a factual level that Mr Hamod established the absence of reasonable and probable cause at the commencement of the prosecution. They also contended that he failed to identify a particular point of time during the maintenance of the prosecution when something occurred, or some factual circumstance emerged (other than what was relied upon in respect of the commencement of the prosecution) that established that the prosecutor did not have reasonable or probable cause to maintain it. 567The element of the tort which requires that there be an absence of reasonable and probable cause involves both a subjective and an objective enquiry. The nature of this enquiry was explained by the High Court in A v New South Wales in the following terms: "58 ... the enquiry 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 has to be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?" 568As the Court later pointed out, at [70], the first of the questions is the subjective enquiry and the second is the objective one. Earlier, at [60], the Court had commented upon the forensic difficulty of proving a negative, that is, the absence of reasonable and probable cause. One of those forensic difficulties is proving what the prosecutor had in her or his mind at the relevant time upon which the tort focuses, namely, at the point of commencement or maintenance of the prosecution. 569The Court noted that unless there was an admission, the proof of absence of reasonable cause would need to be based on inference from other evidence, including from evidence adduced in cross-examination. In this case, there was no admission of absence of reasonable and probable cause. Detective Senior Constable Day gave evidence in the Local Court, but was deceased by the time the malicious prosecution proceedings were heard. Accordingly, any finding as to his subjective state of mind had to be based on such inference, if any, as could be drawn from his evidence in the Local Court, which was tendered in the malicious prosecution proceedings. 570As to the objective nature of the enquiry, the Court in A v New South Wales , at [84], stated that it was plain that the relevant notion was to " an objective standard of sufficiency " of the material available to the prosecutor. The court referred to the statement of Hawkins J in Hicks v Faulkner (1878) 8 QBD 167 at 171 where reasonable and probable cause was explained in the following terms: "... an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." 571The objective element has also been described by reference to " evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution ": see Carolyn Sappideen and Prue Vines, Fleming's The Law of Torts , 10th ed (2011) at p 701, 27.50: or, "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty": Crowley v Glissan (No 2) [1905] HCA 31; 2 CLR 744 at 745. 572In Mitchell v John Heine (1938) 38 SR (NSW) 466 at 469 Jordan CJ specified five conditions to be satisfied for a prosecutor to have reasonable and probable cause. A plaintiff seeking to establish absence of reasonable and probable cause would need to prove that " one or more of [the] conditions did not exist ". Those five conditions were: "(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty." 573In A v New South Wales , the High Court stated that Jordan CJ's approach did not state a test of absence of reasonable and probable cause as such. Rather, the list of conditions: "... may provide guidance about the particular kinds of issue that might arise at trial in those cases where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either, that the prosecutor did not believe the accused to be guilty, or that the prosecutor's belief in the accused's guilt was based on insufficient grounds. The five conditions were not, and could not have been, intended as directly or indirectly providing a list of elements to be established at trial of an action for malicious prosecution." 574In this case, Detective Senior Constable Day based the prosecution on matters of which he was informed by others and which he heard directly in the taped conversations, on 20 January 1995 and in the Record of Interview. Accordingly, the five conditions stated in Mitchell v John Heine may provide some guidance in this case and their application to this case is considered later in this section. 575The other element of the tort of malicious prosecution is that the defendant acted maliciously in initiating or maintaining the proceedings. In A v New South Wales , the Court said, at [91], that to prove malice, it had to be established that the sole or dominant purpose actuating the prosecutor was other than the proper invocation of the criminal law. The Court noted that proof of particular facts may supply evidence of both absence of reasonable and probable cause and malice. The Court instanced, as an example, a case where the plaintiff established that the prosecution was launched on obviously insufficient material. The insufficiency of the material may permit an inference to be drawn that the prosecution was initiated maliciously. Nonetheless, the elements of reasonable and probable cause and malice are distinct and each must be separately proved. The Court emphasised, at [92], that given the wide, indeed limitless circumstances which could constitute malice, the focus had to remain upon the test of whether it was established that the prosecution was initiated or maintained for " a purpose other than a proper purpose ".
The pleaded case 576The pleaded and particularised facts essentially replicated the pleading in respect of the false arrest claim, namely, that his report to Detective Sergeant Eastham of Nowra police constituted knowledge, on the part of the police, that Mr Hamod had a legitimate title to the Platinum Certificate, which was a genuine document and notwithstanding this knowledge, the police initiated and maintained the prosecution against him. 577The pleading in the sixth amended statement of claim, para (73), particularised these allegations as follows: (1) The prosecutors knew the Platinum Certificate was valid through discussions with Detective Sergeant Eastham and also that Mr Hamod was the lawful holder of the Certificate. (2) The prosecutors knew of the relationship between Galaxy and Mr Hamod and that because the Platinum Certificate was valid, Galaxy falsely alleged Mr Hamod had stolen it. (3) The prosecutors were in possession of evidence from Mr Adelman, which verified the authenticity of the Platinum Certificate. (4) Mr Muhlbauer, a representative of UBS, had admitted to police on 20 January 1995 that the Platinum Certificate was genuine. 578Mr Hamod alleged that having regard to the facts pleaded, there was at all times an absence of reasonable and probable cause to believe in his guilt under either the s 300 or the s 178BB charges. He pleaded alternatively that there were significant doubts as to the validity of the prosecution such that the prosecution had no possibility of success and was groundless: at (74). 579Mr Hamod then alleged that despite awareness that the prosecution was groundless, the prosecution was instituted and maintained until his acquittal on 3 April 1998 (at (75)) and that as a result he suffered serious loss and damage: at (76).
Trial judge's findings 580His Honour dismissed Mr Hamod's claim of malicious prosecution on the basis that there was sufficient reason for the prosecution to believe Mr Hamod was involved in fraudulent activity. He expressed doubt as to whether the withdrawal of the second of the two s 178BB charges against Mr Hamod as a nolle prosequi constituted termination in his favour. However, his Honour, at [100], felt that question was not significant. No point was taken in relation to this by any party on the appeal. 581His Honour noted, at [104], that: "The absence of reasonable and probable cause is to be determined on the material that the prosecutor had available when deciding whether to commence or maintain the prosecution, not whatever material may subsequently come to light." (see A v New South Wales ) 582At [148], his Honour concluded that the Platinum Certificate was not genuine. His Honour's view in this regard was based upon the evidence of UBS' witnesses, namely, Messrs Schicker, Ludowici, Muhlbauer, Gauch and Mueller-Lhotska, which has been considered above (see section (6) at [359] ff). His Honour considered that the evidence of Mr Westwood gave collateral support to these opinions. 583His Honour noted the paucity of relevant evidence and lack of legal submissions advanced by Mr Hamod in support of his malicious prosecution claim. His Honour stated: "153 I reiterate that it is particularly unsatisfactory to have to attempt to glean or to (re)construct [Mr Hamod's] case from the wealth of disparate documents and submissions upon which they appear to rely. One of the authorities appended to [Mr Hamod's] submissions is A (supra) from which I have quoted extensively. There can be no doubt that it is an authoritative statement of the relevant law or that [Mr Hamod] accept[s] it as such. But [Mr Hamod's] submissions do not direct me at all to material suggesting that both of the relevant tests that it adumbrates are met on the evidence in this case. Having regard to the wealth of material tendered and written by or on behalf of [Mr Hamod] it is difficult to be certain, but as far as I can determine [Mr Hamod does] not at any point in [his] submissions (other than in terms such as at pars 265, 609 - 611 and similar) use either the word 'malice' or the expression 'absence of reasonable and probable cause' anywhere else at all and nowhere in a way that assists me to understand what [he says] about them. 154 The material in the police brief, which I have attempted to summarise in a relevant way, is on the contrary replete with material that suggests that Det Day would have been entitled to form the view that the certificate was bogus and that Mr Hamod was attempting to sell it as the genuine article when he knew that it was not. Mr Hamod did make statements that the certificate was genuine and that he had authenticated it with UBS in Geneva. (For reasons that are explained in more detail below, these statements must have been false). [Mr Hamod does] not attempt to relate these statements by Mr Hamod to [his] obligation to establish, if [he is] to prove malice, that Det Day acted for an improper purpose and not for the purpose of carrying the law into effect. [Mr Hamod does] not identify, and certainly [has] not proved, the existence of such an improper purpose. There is not even the faintest suggestion of it." 584His Honour considered that there was ample evidence to suggest that Mr Hamod was involved in a fraud, stating: "159 Det Day was armed with information that the certificate was bogus. He was armed with information that Mr Hamod was touting it as the genuine article and that he had authenticated it and that others had done so to his knowledge. Det Day had information that the certificate was being offered for sale by Mr Hamod or that expressions of interest in it were being sought. Mr Hamod's insistence that prospective buyers conduct their own due diligence was not inconsistent with his having made false statements that the certificate was genuine or with a reckless disregard on his part as to whether it was or not. As the High Court said in A , even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for which there appears to be no evidence in the present case) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. Det Day was clearly persuaded that the laying of the charge was proper. The material available to him at the relevant time was objectively capable of warranting the laying of the charge."
Submissions on the appeal 585On the appeal, Mr Hamod relied upon the following evidence to establish that there was an absence of reasonable and probable cause to bring the prosecution: (1) The statement of Detective Sergeant Eastham dated 31 January 1995; (2) Copies of some pages of two certificates given to Detective Sergeant Eastham on 26 October 1994; (3) Mr Hamod's statement given to Detective Sergeant Eastham on 26 October 1994; (4) The transcript of the intercepted conversations with Mr Wall and others on 20 January 1995 when Mr Hamod was seeking to sell the Platinum Certificate to Mr Wall; (5) Copies of the Buy/Sell Agreement presented to Mr Wall during the course of the intercepted conversation on 20 January 1995; (6) Mr Hamod's Record of Interview conducted on 20 January 1995. 586The relevance of this material was said to be as follows: (1) It was inconceivable that a person who was intending to engage in fraudulent activities would report a threat to police which related directly to the commodity, namely, the Platinum Certificate, that he was proposing to transact. In this regard, it was submitted that it was critical that in his statement given to Detective Sergeant Eastham at Nowra in October 1994, Mr Hamod had named the parties with whom he had been having dealings with in relation to the Platinum Certificate. He also named Messrs O'Dowd and Clarke, who, he said, had made threats to him relating to his possession of the Platinum Certificate. Mr Hamod contended that it was relevant that he had informed Detective Sergeant Eastham that those persons were claiming rights to the Platinum Certificate. Mr Hamod had also given to Detective Sergeant Eastham a copy of portions of two certificates, one of which was the Platinum Certificate. Mr Hamod contended that the police were thus on notice of the very document they subsequently alleged was not genuine. He also relied upon the fact that Detective Sergeant Eastham made enquiries about the Platinum Certificate with the Federal Police. (2) Mr Hamod submitted that, as was apparent from the transcript of the intercepted conversations with Mr Wall and others on 20 January 1995, he made no representation to them that the Platinum Certificate was genuine, but at all times insisted that it was up to the buyer to undertake an authentication process. Mr Hamod further submitted that an examination of every Buy/Sell Agreement in the police's possession, including the one used in the discussions with Mr Wall and others on 20 January 1995, was confirmatory evidence that it was an essential part of the contract that the buyer undertake their own validation of the authenticity of the Platinum Certificate. (3) Finally, so far as the Record of Interview was concerned, Mr Hamod submitted that the information he gave to police during the course of his interview was confirmatory of what he had told Detective Sergeant Eastham in October 1994 and, in particular, that it contained full details of Mr Hamod's various dealings with the Platinum Certificate. As I would understand the way this submission was put, it was that Mr Hamod had been entirely frank in the Record of Interview and having regard to the detail he was able to give, the prosecutor could not have a reasonable and probable cause to believe that he had committed any offence relating to his possession of and dealing with the Platinum Certificate. 587In order to consider these arguments, it is necessary to deal specifically with the material referred to in [585], which Mr Hamod contended proved his case. Detective Sergeant's Eastham's evidence and the copies of pages of certificates that Mr Hamod gave him are considered earlier at [197] ff . The material in -(6) is considered below. There was other evidence critical to the question whether Mr Hamod had established his malicious prosecution claim which also needs to be considered. That additional evidence was: the evidence relating to the validity of the Platinum Certificate; other information in the possession of the police, particularly, the statements of Mr Balding and Mr O'Dowd (taken after the arrest); and Detective Senior Constable Day's evidence in the Local Court, the transcript of which was in evidence in the proceedings before Harrison J.
Material upon which Mr Hamod relied: see [585] above
Mr Hamod's written statement handed to Detective Sergeant Eastham: 585 588Mr Hamod did not refer the Court to any particular portion of the statement that he handed to Detective Sergeant Eastham. However, I will attempt to summarise, as briefly as I can, a number of paragraphs that appear to be relevant. 589In the statement, Mr Hamod set out the circumstances in which he met Mr O'Dowd, namely, through an introduction by a Mr Robin Thomas, who enquired whether Mr Hamod's companies would be interested in a major international project for the marketing and selling of gold and platinum certificates of deposits. He first met Mr Clarke in February 1994 and Mr Clarke told him that he was the assistant for the Sellers' Signatory, Mr O'Dowd, and that his role was to find an international consultant and agent experienced in negotiating with buyers for the sale of such certificates. According to the statement, there was an exchange of letters between them. Sometime between 1 and 8 March 1994, Mr Clarke informed Mr Hamod that the certificates were in bearer form and were owned by Tone Chai Investments of Hong Kong, a private company owned by the Chinese Government. 590Mr Hamod said that he met Mr O'Dowd in company with Mr Clarke on 8 March 1994 at Melbourne International Airport. Mr Hamod said that during the course of that meeting he viewed some of the certificates and expressed interest in having the exclusive agency for their marketing and sale (paras (12), (13)). 591The discussions proceeded, but were unsatisfactory to Mr Hamod, because Mr O'Dowd required the payment of an option of $15,000 for possession of ten certificates. Mr Hamod said he refused that proposal. There were further discussions on the same day, still at Melbourne Airport. Mr Hamod said an agreement was reached, the terms and conditions of which were as follows: "1. Mr. O'Dowd agreed to appoint me as his consultant give us exclusive agency and authority to sell the certificate for 2,940 metric tonne of gold issued by Union Bank of Switzerland. 2. Mr. O'Dowd agreed to provide a copy of the certificate for marketing information. 3. Mr. O'Dowd agreed to provide the proposed Buy/Sell contract document including the terms and conditions and a written procedure for the execution and completion of the contract for the sale of the certificate. 4. I agreed to work with Mr. O'Dowd and the Sellers for the introduction of a procedure for the negotiation, execution of the contract and the completion of the sale. 5. I agreed to cancel all my commitment on other projects and make myself available twenty four hours a day and seven days a week to market and introduce buyers and negotiate the contract in accordance with the Sellers written procedure. 6. I agreed to pay our cost and expenses for the marketing and the introduction of potential buyers. 7. Mr. O'Dowd agreed to pay our fees and commission and guaranteed 0.5% half percent commission of the sale of certificate." 592According to Mr Hamod's statement, there was then some confirmatory correspondence in respect of the agreement between the parties. Mr Hamod stated that on 9 March 1994, he prepared the offer for sale document and the procedure for the proposed sale of the Platinum Certificate and sent it to Mr O'Dowd for his consideration and approval. On the same date, Mr Clarke informed Mr Hamod that Mr O'Dowd approved the offer and procedure for sale documentation and that Mr O'Dowd wanted Mr Hamod " to offer the 2,940 Mt gold certificate to any buyer " of Mr Hamod's choice, " due to the urgency of the matter " (para (26)). Mr Hamod then set out details of dealings with a Mr Mukhaimer of the Khater Group of Geneva in respect of the gold certificate. 593The statement continued that on 10 March 1994, Mr Clarke advised Mr Hamod that Mr O'Dowd rejected the offer and refused to deal with the Khater Group, because of Mr O'Dowd's previous experience with " some Arab and members of the P.L.O. group " (para (30)). Mr Clarke informed Mr Hamod that Mr O'Dowd wanted him " to call the Italian Buyer and deal with him on the sale of the certificate for 2.94 Mt gold issued by Union Bank of Switzerland " (para (31)). Mr Hamod prepared the relevant documentation for that buyer. On the same day, the Italian buyer, represented by Mr Enini, warned Mr Hamod that there were some forged certificates of a similar nature circulating in the market in Europe. Mr Enini advised Mr Hamod to ask the Sellers' Signatory for a copy of the Platinum Certificate to check it through their sources in the banks in Switzerland (para (34)). Mr Hamod stated that he informed Mr Clarke of these remarks and asked him for a copy of the Platinum Certificate. Mr Clarke promised to forward a copy. During this conversation, Mr Clarke was stated to have told Mr Hamod that he: "... was aware of the CIA of America [attempting] to disrupt the sale of the certificates by circulating a copy of our certificates and alleging that the certificates are forged copies." (para (36)) 594The statement continued with an account of dealings between Mr Hamod, Mr Clarke, Mr Enini and Mr O'Dowd from 10 March to 16 March 1994. On the last of those dates, two things were said to have occurred. First, Mr Enini sent a buyers' revised letter of intent and acceptance of the sellers' terms and conditions. Secondly, there was a communication from Mr Enini, presumably by telephone, in which he told Mr Hamod that he, Mr Enini, had received an offer and a copy for the same certificate from a person named Mr Vendevort from Belgium (para (54)). 595There followed communications between Mr Hamod and Mr Clarke, in which Mr Clarke said that Mr O'Dowd wanted Mr Hamod to call Mr Mukhaimer from the Khater Group and negotiate with him for the sale of the two gold certificates. Mr Clarke also informed Mr Hamod that Mr Enini was not telling the truth and was " full of garbage " (para (56)). 596Mr Hamod acted upon this instruction and sent Mr Mukhaimer a new offer to sell for two gold certificates. Mr Hamod claimed that in the days following, Mr O'Dowd telephoned him and asked Mr Hamod to deposit $50,000 cash into his bank account, or he would cancel the agreement as to the marketing of the certificates. He then received a letter from Mr Clarke attacking the credibility of Mr Enini. Next, Mr Hamod's agent, Mr Thomas, informed him that he had paid Mr O'Dowd the $15,000 cash deposit. Mr Hamod said he received a letter from Mr Clarke acknowledging the receipt of that amount. There were communications between the parties about the validity of Mr Enini's claim and another reference to the CIA having stolen copies of the certificates and a statement that a Mr Vendevort was an agent for the CIA (para (64)). 597In the last week in March 1994, Mr Clarke told Mr Hamod that Mr O'Dowd wanted him to sell three bullion certificates. These certificates included a certificate of deposit for 9.200 metric tonnes of platinum issued by UBS Switzerland. Presumably, this was the Platinum Certificate. During this time, Mr Hamod was told that Mr O'Dowd wanted him to cancel negotiations with Mr Enini and find other buyers for the three certificates. Mr Hamod stated that he then entered into negotiations with " Mr. Gary Kalhoun, the mandate of Roach Child the Baron of Germany " and the Khater Group. When he reported these expressions of interest to Mr Clarke, he was told that Mr O'Dowd would not travel to meet any of the buyers unless he received from the buyers $50,000 cash deposit for each of the certificates.
The Buy/Sell Agreement: 585 598Mr Hamod referred the Court to two copies of the Buy/Sell Agreement that were in the possession of the police at the time of the instigation of the prosecution. The first document contained 29 clauses and has portions of it struck out. The second document was in draft form and included express references to Mr Hamod and his company and is, as I understand it, the Buy/Sell Agreement that was being negotiated on 20 January 1995. It is convenient, therefore, to refer mainly to that document. There was one major distinction between the two documents, to which I have already referred, namely, the inclusion in the first document of cl 6, which Mr Wall understood required the payment of an up-front fee. 599Clause 6 was not in the second document and Mr Wall did not expect that it would be, having regard to his conversation with Mr Hamod that the up-front fee was to be " outside the contract ". 600The second document identified Galaxy as the last holder of the Platinum Certificate; the power of attorney given by Galaxy to Mr O'Dowd to negotiate, discount and sell the Platinum Certificate; and Mr O'Dowd's engagement of Mr Hamod authorising him to negotiate, discount and sell the Platinum Certificate. Clause 4(a) referred to the Platinum Certificate relating to the 4,590,000 kg of platinum. 601The clauses of the second document upon which Mr Hamod particularly relied were as follows: "7. The Buyer warrants that they are fully aware that they are buying the legalised holder and title of the certificate and also warrants that they have the capability to authenticate and validate the certificate. 8. The Seller agrees to provide the original of the certificate for authentication and validation at the premises of the Seller and or authorise the Buyer to inspect the Certificate at the Sellers Bank." 602The price of the Platinum Certificate and the distribution of the proceeds of sale were specified in cl 15 of the second document as follows: "The Seller warrants to sell the certificate for a cash price valued at sixty percent (60%) of the calculated value of the certificate and agrees to grant a forty percent (40%) gross discount for commissions, bank fees and costs and discount to Buyers interest calculated as follows: a.) 50% fifty percent of the value of the Certificate payable to the last holder [Galaxy's] account in accordance with the account details provided under Schedule 'A' of the agreement b.) 10% Ten percent of the value of the Certificate payable to the holder and Seller Hamock Investments' account in accordance with the account details provided under Schedule 'B' of the agreement. c.) 1% One percent of the value of the Certificate payable to the Sellers intermediaries account in accordance with the account details provided under Schedule 'C' of the agreement. d.) 0.5% Half percent of the value of the Certificate payable to Sellers mandates account in accordance with the account details provided under Schedule 'D' of the agreement. e.) 0.5% Half percent of the value of the Certificate payable to Buyers mandates account in accordance with the account details provided under Schedule 'E' of the agreement. f.) 38% Thirty Eight percent of the value of the Certificate is a provision for discount to the Buyer and for Bank fees and Costs." 603According to Schedule "A", the last holder was identified as Tone Chai Investments Limited, Trustee for Galaxy. I pause to note that Mr Damanik of Galaxy denied ownership of the Platinum Certificate, denied any right to it and denied any business relationship with Tone Chai Investments. Schedule "B" identified the holder as Hamock Investments as trustee for the Hamod Group and a bank account in the name of Hamod Holdings in Nowra was nominated for payment. Schedule "C" specified a company called International Investments Asia Pacific Pty Limited, with a bank account in Melbourne being nominated. Schedules "D" and "E" referred to a 0.5 per cent payment payable to the sellers' and buyers' mandates respectively. No details were completed specifying any particular account for these last two payments. 604Schedule "F" to the second document specified the steps entailed in the procedure for completion of the Buy/Sell Agreement as follows: "1. Seller issues a Full Corporate Offer to Sell. 2. Buyer issues a RWA and demonstrate capability to buy. 3. Seller and Buyer sign the Buy/Sell Agreement. 4. Buyer provide a letter of financial capability to Buy. 5. Seller provide a full copy of the Certificate for authentication and validation. 6. Buyer inspect the original of the Certificate. 7. Buyer complete the Authentication and validation. 8. Seller and Buyer calculate the value of the Certificate and fix the value. 9. The Seller deposit and block the Certificate for the Buyer. 10. The Buyer deposit and block the funds for the amount payable for the Certificate to the last holder, the Seller and for the commission. 11. Closing Bank to Bank funds for the Certificate. 12. The Buyer complete the payment for the certificate and the Seller assists the Buyer in the transfer of title."
Intercepted conversations and Record of Interview: 585 and (6) 605The relevant portions of the intercepted conversations and the Record of Interview are to be found at section (7) (false arrest), at [488] ff and [502] ff and accordingly, do not need to be set out here.
Evidence as to validity of the Platinum Certificate 606The validity of the Platinum Certificate has been considered in section (6). The evidence in that section and the conclusion that the Platinum Certificate was not genuine are essential considerations in the malicious prosecution claim. It is sufficient to note at this point that Mr Schicker pointed out the many errors in the Platinum Certificate that caused him to describe the document as a " fantasy ".
Mr Balding's statement 607Mr Balding was a Certified Practicing Accountant and handled Mr Hamod's accountancy affairs. He provided a statement to police on 3 March 1995 in which he provided the following information. In September 1994, Mr Hamod telephoned him and told him that he had " brought back from overseas some Platinum certificates " and would " sell them eventually ". Mr Hamod contacted Mr Balding again in October 1994 and advised him that he had met with Mr Wall who wanted to sell the Platinum Certificate on behalf of Mr Hamod. Mr Hamod reiterated this on numerous occasions in the following weeks. 608In early December 1994, Mr Hamod contacted Mr Balding and told him that he had appointed Mr Wall as the sellers' mandate. On 5 December 1994, in a meeting he attended with Mr Hamod, Mr Lymbery, Mr Wall and Mr Page, Mr Hamod stated that he had the authority to sell the Platinum Certificate. Mr Wall had pointed out that the documents indicated that Mr O'Dowd had the mandate to sell. Mr Hamod had insisted that he was the bearer of the certificates and had a lien on them and that " Galaxy and O'Dowd is out of it ". 609In early January 1995, Mr Hamod informed Mr Balding that Mr Wall wanted to sell the Platinum Certificate on his behalf and that he had a buyer. A few days later, Mr Hamod asked Mr Balding to arrange for a bank account to be opened with the Advance Bank at Nowra. Mr Balding understood this was to handle monies for Mr Hamod's dried fruit business. Mr Hamod said he was to be the sole signatory on the account, as he did not want to involve his wife in financial operations. A short time after this, Mr Hamod informed Mr Balding that he wanted a bank officer and solicitor to certify the copies of the original Platinum Certificate. 610On about 16 January 1995, Mr Hamod asked Mr Balding to prepare a report of calculations of the value of the Platinum Certificate, showing commissions and tax payable. Mr Hamod gave instructions that the commissions payable were as follows: Galaxy 50 per cent; International Investments 1 per cent; Hamock Investments 10 per cent; sellers' mandate 0.5 per cent and buyers' mandate 0.5 per cent. In addition, Mr Hamod asked Mr Balding to contact the Advance Bank in order to ascertain whether Mr Dunn, the manager of the Nowra branch, could accompany Mr Hamod to Sydney for the sale of the Platinum Certificate and to ensure that the bank guarantee was irrevocable. The reference to the bank guarantee was, it seems, a reference to the payment by the buyer. Mr Hamod also supplied Mr Balding with a list of people that he wanted to pay as soon as he received " the first payment ". The payments were in very large amounts. For example, Mr Balding was to be paid $20 M, Mr Lymbery was to be paid $20 M, Mr Lees was to be paid $1 M and a person called Emily Scott, whom Mr Hamod stated he owed $20,000, was to be paid $10 M. 611Between 17 and 19 January 1995, Mr Balding had a number of telephone conversations with Mr Wall, which he recorded. Following each telephone conversation and on all but one occasion, Mr Balding played Mr Hamod the tape recordings of their conversation. 612On 17 January in the first of these calls, Mr Wall telephoned Mr Balding, inquiring as to the amount of money that Mr Hamod wanted " by way of deposit ". In his statement of evidence, Mr Balding said that although he was aware that Mr Hamod had been negotiating with Mr Wall directly, Mr Hamod had not mentioned that he had requested an up-front fee from the buyers. Mr Balding asked what the relevant figure was and Mr Wall said that the normal figure was " usually one percent of the contract price ". 613Mr Balding sought Mr Hamod's instructions as to the amount of the up-front fee. Mr Hamod stated, " [if] the buyer wants to pay well then that's fine by me ". Mr Hamod told Mr Balding that the payment should be placed in the Hamod Investments Advance Bank account set up earlier that month. Mr Balding reported back to Mr Wall that Mr Hamod was " happy with the one percent " and, at the request of Mr Wall, and with the consent of Mr Hamod, faxed Mr Wall a written calculation of the 1 per cent up-front fee and a draft copy of the Buy/Sell agreement. 614On 18 January 1995, Mr Balding and Mr Wall had a further telephone conversation, in which they discussed a reduction in the up-front fee, the safekeeping receipt, how long it would take for the Platinum Certificate to be validated, and the number of people attending the proposed meeting when the Platinum Certificate was to be authenticated. Mr Balding assured Mr Wall that he would confirm the amount of the up-front fee with Mr Hamod. 615Mr Balding telephoned Mr Hamod to convey Mr Wall's message that the buyer considered that an up-front fee of one per cent was too much and that the buyer thought that the Platinum Certificate needed to be taken to Switzerland for validation. Mr Hamod responded: "I don't want their money and the procedure is that they have to validate the certificate first and then they can pay the first tranche. I am not letting go of the original certificates until they are validated." 616Mr Balding replied that Mr Wall was insistent about obtaining both a deposit figure and the original Platinum Certificate for validation. In the same conversation, Mr Wall stated that the buyers were prepared to pay a bank draft of between $50 M and $500 M, but not 1 per cent. In response to this, Mr Hamod told Mr Balding that he agreed to a deposit of $250 M provided that that the money was deposited into a trust account until the deal was complete. Mr Hamod said that it was very important that the last holder and other parties to the contract were protected. 617Mr Balding's evidence was that Mr Hamod insisted that he would not release the Platinum Certificates until it was validated. Mr Wall, for his part, wanted possession of the original Platinum Certificate for validation. In addition, Mr Balding said that on numerous occasions, Mr Hamod told him that he did not want the money and wanted to follow procedure. Nonetheless, Mr Hamod agreed to the buyer paying a deposit and agreed to the amount proposed by Mr Wall. He instructed Mr Balding to advise Mr Wall of the revised up-front fee of $250 M and Mr Balding followed these instructions. 618On the evening of 18 January, Mr Balding and Mr Gary Lees, solicitor, went to Mr Hamod's home. Mr Hamod told Mr Balding that he was unhappy with Mr Wall, as he had not been following the procedures laid down in the contract. Later that night, in Mr Balding's office, Mr Hamod repeated his dissatisfaction with Mr Wall. He again emphasised that he had told Mr Wall he was not interested in any money until the buyer validated the Platinum Certificate, saying: "I want the buyer to sign the contract and then validate the certificates and once he has satisfied himself then the first tranche can take place." Mr Balding pointed out that Mr Wall had conveyed to him that the buyer wanted to pay a deposit as a sign of good faith. Mr Hamod repeated that he was not interested in the buyer's money unless and until the Platinum Certificate was validated. 619Mr Balding's statement of evidence continued: "[Mr Lees] said, 'The certificates can not leave the room. [Mr Hamod] said, 'Yes, that is correct. We can all sit around the table until they validate the certificates. The original certificates can sit on the table and we can all stare at them.' I said, 'How long is this all going to take?' [Mr Lees] said, 'We can stay there, we could use shifts if it is going to take a long. But the certificates can not leave the room.' [Mr Balding] said, 'We need to know how long the process takes. Why don't we ring [Mr Wall] and find out.' [Mr Hamod] said, 'The certificates can not leave the room. Once they are in their possession I will never see them again and the last holder will not get his money and the last holder must be paid.' [Mr Lees] said, 'I think the best solution is to have the documents sit on the table. They can have representatives in the room, we can have representatives in the room and once the documents are validated then they can give us an irrevocable bank guarantee and the transactions can commence.' [Mr Hamod] said, 'I agree with that. It seems to be the only solution, I can not let the documents out of my sight until the deal is done. [Mr Balding] please ring [Mr Wall] and tell him this is my last position.'" 620Mr Balding said that, by 19 January 1995, Mr Hamod and Mr Wall still had not agreed upon a procedure for the sale of the Platinum Certificate. In particular, there was disagreement as to where the meeting should take place. Mr Hamod refused to attend UBS' office and nominated the National Australia Bank or the Advance Bank. Mr Wall insisted on meeting at UBS' office. After speaking to Mr Wall, Mr Balding formed the impression that the meeting would not take place. 621However, on the evening of 19 January 1995, Mr Hamod rang Mr Balding and stated: "I have spoken to [Mr Wall] and everything is alright and can you come to Sydney tomorrow. Would also inform [Mr Dunn] and [Mr Lees] of this." 622On 20 January 1995, Mr Hamod, Mr Balding, Mr Dunn, Mr Lees, Mr Lymbery and a Mr Elteres attended the Liverpool branch of Advance Bank. Mr Balding told the bank officers there that Mr Hamod expected to receive a bank draft of $250 M that day from Chase Manhattan, which was a deposit in relation to the sale of 4590 tonnes of platinum. Mr Hamod wanted to use the Advance Bank to receive these funds. However, as the Advance Bank could not deal with funds of that magnitude and after consultation with Mr Hamod, Mr Balding arranged for Chase Manhattan to accept the $250 M on Mr Hamod's behalf. 623The group then travelled to Sydney and Mr Hamod, Mr Balding, Mr Dunn, Mr Lees, Mr Lymbery and Mr Elteres met Mr Wall and Mr Teh at a coffee shop. They then proceeded to the UBS offices on Macquarie Place. After lunch, the group attended the National Australia Bank on the corner of Hunter and Pitt Street, Sydney. Mr Balding did not comment on the meetings, except to say that he agreed with the transcripts of the meetings provided to him by Detective Day.
Mr O'Dowd's statement 624Mr O'Dowd provided a statement to Detective Senior Constable Day on 11 January 1998. To put this in context, at that time the Local Court hearing was part heard, having commenced on 17 March 1997. It concluded on 3 April 1998, when Mr Hamod was acquitted. It appears that the statement may not have been tendered in the Local Court. It also seems that Mr O'Dowd was not called as a witness in those proceedings. Nonetheless, the statement was information in the possession on the police during the maintenance of the prosecution and was in evidence in the proceedings before Harrison J. 625In his statement, Mr O'Dowd explained the circumstances in which he had met Mr Damanik, chairman of Galaxy, and given a power of attorney to act in the facilitation of transactions relating to various bullion certificates. He said the power of attorney only gave him permission to consult governments or central government banks to have the Platinum Certificate authenticated. He said the power of attorney did not give him the authority to sell the documents. This could only be done between Mr Damanik and the purchasing government (at para (4)). 626Mr O'Dowd said that he was introduced to Mr Hamod by Mr Clarke in early 1994. The first meeting was at Melbourne airport and was for the purposes of discussing the possibility of Mr Hamod acting as Mr O'Dowd's mandate in respect of the bullion certificates. Mr Hamod indicated to him that he had contacts with high-level government officials in Lebanon and with princes in the Middle East. Mr O'Dowd said that he (Mr O'Dowd) believed that " these government representatives were the people who could establish the validity or otherwise of the certificates " (at para (5)). This first meeting was unsuccessful. Mr O'Dowd had a second meeting with Mr Hamod at the airport later on the same day. On this occasion, Mr O'Dowd gave Mr Hamod a mandate to undertake negotiations with his contacts. Mr O'Dowd said that it was " about this time that Mr Hamod was provided with a copy of a certificate " (at para (7)). Mr O'Dowd said that he did not have any further direct meetings with Mr Hamod in Australia. The meetings were between Mr Clarke and Mr Hamod. After several meetings between Mr Clarke and Mr Hamod, Mr O'Dowd said he spoke to Mr Damanik in respect of appointing Mr Hamod as his " mandate to consult his government contacts with a view to validating and authenticating the certificates ". Mr O'Dowd said he made this decision because he did not have contacts that would enable him to validate the certificates and Mr Hamod claimed that he had such contacts. This statement was inconsistent with Mr Damanik's evidence in the Local Court. 627Mr O'Dowd then said, at para (6) of his statement: "My understanding in relation to these certificates is that the parties who bring together the negotiating governments would enjoy a success fee if a transaction takes place. I do not know and never have known what these certificates actually represent. They could be bearer certificates, some form of deposit receipt or a monetary instrument for international settlement. They could equally be absolute rubbish and in hindsight I would suggest that they are. The one thing I believed and was very careful to always state was that these were not commercial documents and as such could not be traded commercially. I told [Mr Hamod] this fact at our first meeting and continued to state this fact to him throughout my dealings with him." 628Mr O'Dowd said that, shortly after this, he went to Indonesia and Mr Hamod went to Europe. Mr O'Dowd went to Europe in about April 1994 and collected the four original certificates from the airport where he had sent them. He said he already had in his possession a power of attorney in respect of each certificate. He said that to his recollection: "... the four certificates were a DAL BANK OF SEOUL for 2,500,000 kg, CENTRAL BANK OF STOCKHOLM 6,200,000 kg of Gold; and two UBS certificates ... one was gold and the other was for 4,590,000 kg of platinum." (at para (8)) 629Mr O'Dowd then gave a history of the meetings that he and Mr Hamod had in Europe. The first was in London, where they met a Dr Alike. Discussions between them were terminated when Dr Alike asked whether they would have a bank confirm the validity of the certificates and Mr O'Dowd told him that " that's your job ", but Dr Alike could not undertake the validation task (at para (9)). There was then a meeting with a Mr Nuspl in Germany. However, there was a falling out between Mr Nuspl and Mr Hamod and those discussions were terminated. 630Later, they travelled to Geneva and met with a Dr Khater. Dr Khater said that he would have " the right people " authenticate the certificates but that did not happen. A contact of Mr Hamod, a Mr Enini, then drove Mr Hamod and Mr O'Dowd to Milan. In the ensuing weeks, Mr Enini arranged meetings with various people in different parts of Europe. These people included a Mr Kurian and a Ms Marie Bolgia. At each meeting with Mr Kurian and Ms Bolgia, of which there were several, Mr O'Dowd stated that the certificates had to be authenticated through a government source. 631Mr Kurian was unable to produce any government authority and the proposed deal with him fell through. Mr O'Dowd said that Ms Bolgia identified herself as a retired stockbroker and trust manager from New Jersey. Mr O'Dowd said that at no time did Ms Bolgia claim to be a retired employee or an official of UBS or any other bank. She claimed to be the head of her own company. She did not claim that she had authenticated any of the certificates (at para (9)). 632Mr O'Dowd said that it was around that time that Mr Enini and Mr Hamod were detained in relation to the non-payment of the hotel bill in Zurich. Mr Enini paid the hotel bill and was released. However, Mr Hamod was detained due to the non-payment of a hotel bill in Geneva. Mr O'Dowd said that upon Mr Enini's release, he and Mr Enini travelled together to Milan to await Mr Hamod's release. Mr O'Dowd further said that it was about this time that he became aware that the UBS Certificate was in Mr Hamod's luggage (at para (10)). Mr O'Dowd's statement continued: "11. During this period that Mr Hamod and I met with Mr Hamod's contacts, I have never heard anyone tell me or him that they had authenticated any of the certificates. A number of people told us that the certificates were rubbish, others would say that the certificates were interesting. 12. Approximately four weeks later I became aware that Mr Hamod had been deported from Switzerland and had returned to Australia. I telephoned him and said, words to the effect, 'Please return the certificate to Mr Enini.' He agreed to do this. I also said, 'If Mr Kurian doesn't produce someone who can authenticate the documents, it's over.' About six weeks later I decided to travel home to Australia as Mr Hamod and his contacts had produced no one with a capacity to authenticate the certificates. Before departing I forwarded the two certificates I had back to Mr Daminek. I believe the Bank of Seoul Certificate remained in the hotel safe in Geneva. Mr Hamod had kept the Union Bank of Switzerland Certificate." 633Mr O'Dowd said that when he returned to Australia he sent to Mr Hamod, by registered mail and by facsimile, a letter terminating any mandate arrangements between them. He said he also instructed Mr Hamod to forward the Platinum Certificate back to the legal holder, Mr Damanik. Mr O'Dowd said that he had never reinstated the mandate and Mr Hamod had no authority to represent either Mr Damanik or himself. He said that since returning to Australia, he had not met with Mr Hamod nor spoken to him.
Other evidence 634The evidence of Messrs Wall, Ludowici and Muhlbauer considered in section (7) (false arrest) is also relevant to the determination of the malicious prosecution claim.
Detective Senior Constable Day's evidence 635Detective Senior Constable Day's evidence has been relevantly dealt with in section (3) (the transcript issue) and section (7) (false arrest). As the prosecutor, his evidence is also central to the determination of the malicious prosecution case.
Was the prosecution initiated and maintained without reasonable and probable cause? 636Before determining whether Mr Hamod has made good his challenge to the trial judge's dismissal of the malicious prosecution claim, one further matter should be noted. There may be a question whether 20 January 1995 was the date of commencement of the prosecution. Neither Mr Hamod nor the State directed attention to this question. The commencement of committal proceedings is now provided for in the Criminal Procedure Act 1986, s 47, which provides that committal proceedings are commenced by the issue and filing of a court attendance notice. Section 53 provides that all proceedings are taken to have been commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with the Act. There were no equivalent provisions in the Act as at 1995 and the old authorities on the matter indicate that proceedings commence at the point of arrest, the issue of a warrant or the issue of a summons. The authorities are reviewed in GG v Regina [2010] NSWCCA 230, especially at [76] ff. 637In this case, the relevant time of commencement appears to have been the point of arrest. However, nothing turns on the precise date that the committal was commenced because as at 20 January 1995, the material in the possession of the police fully justified the bringing of the prosecution. 638The evidence reviewed above is a very lengthy discussion of the main game insofar as this ground of appeal is concerned. The long discussion has been necessary to deal with the unfocused submissions of Mr Hamod. It is now necessary to determine whether Mr Hamod has made out his challenge to his Honour's dismissal of the malicious prosecution case. It is convenient to do that in the first instance by reference to the pleaded case and then to the submissions to the extent that they raised any additional issue not covered by the pleaded case. 639The first allegation in the pleaded case was that the prosecution was initiated and maintained against Mr Hamod although the police had information as at 20 January 1995 that the Platinum Certificate was valid and a legitimate title to 4590 tonnes of platinum issued by UBS. Insofar as the initiation of the proceedings was concerned, as at 20 January 1995, the police had information from Mr Schicker and Mr Ludowici to the absolute contrary of this proposition. Insofar as the maintenance of the proceedings was concerned, Mr Schicker and Mr Ludowici gave evidence in the Local Court proceedings and neither was shaken in cross-examination. The evidence of each was unambiguous: that the Platinum Certificate looked fake and was a fake. To adopt the phrase used by Mr Schicker, the Platinum Certificate was " a fantasy ". Mr Schicker's evidence was also that it was impossible for any bank in the world to have the specified quantity of platinum in its possession. I add that for my part, I considered that the comparison with Switzerland's entire gold stock was compelling. 640To the extent that the first allegation in the pleaded case was intended to refer to the information that Mr Hamod provided in his Record of Interview, it required an acceptance of the veracity of that information. As I have commented elsewhere, the events recounted by Mr Hamod do not fall within the usual run of circumstances that people encounter in their everyday lives. There were references to potential wars, secret services of various countries, kidnappings, imprisonments, army escorts, international institutions and extraordinary amounts of money. With respect to Mr Hamod, it would be difficult for any police officer to take much, if any, of that information seriously. In his evidence in the Local Court, Detective Senior Constable Day also said that much of the information that Mr Hamod provided was, in any event, internally contradictory. This assessment was correct. 641More importantly, so far as the maintenance of the prosecution was concerned, much of the information given in the Record of Interview was contradicted by other evidence obtained by the police in preparation for the hearing. I have already referred to the evidence of Mr Ludowici and Mr Schicker in relation to the validity of the Platinum Certificate. Evidence was called from Dr Frey, who not only denied that he told Mr Hamod that he had authenticated the Platinum Certificate, but said that he told Mr Hamod, in English, that the Platinum Certificate was a joke. He also denied that he or Dr Hagan represented to Mr Hamod that they were acting for a buyer or for UBS. The information provided by and evidence given by him had an air of rationality that was not matched by the information Mr Hamod provided to police in the Record of Interview. 642Prior to the end of the proceedings in the Local Court, the police obtained a statement from Mr O'Dowd. As I have already indicated, it is not apparent from the materials in the appeal books that this statement was tendered in the Local Court. Nonetheless, it was material in the possession of the police relevant to the continuation of the prosecution. Mr O'Dowd's statement contradicted Mr Damanik's evidence. However, it also contradicted all of Mr Hamod's evidence relating to the authenticity of the Platinum Certificate and the steps he contended in his Record of Interview that he had taken to have the Platinum Certificate authenticated. 643Mr Hamod's particularised allegation as to police knowledge that the Platinum Certificate was valid was that the prosecutors knew that was so, through discussions with Detective Sergeant Eastham. There was no doubt that Mr Hamod went to Nowra police in October 1994 and was interviewed by Detective Sergeant Eastham. He gave Detective Sergeant Eastham a copy of documents which included the Platinum Certificate. Likewise, there is no doubt that Detective Sergeant Eastham contacted the Federal Police. Apart from that, however, the balance of Mr Hamod's allegation as to the outcome of the report to the Federal Police was not agreed to by Detective Sergeant Eastham and there was no other evidence of it. As I have stated elsewhere, Mr Hamod's reliance upon his report of the threats of assault to Nowra police is not a matter from which an inference must be drawn that the Platinum Certificate was genuine. 644The next particularised allegation was that the prosecutors knew of the relationship between Galaxy and Mr Hamod and because the Platinum Certificate was valid, Galaxy had falsely alleged Mr Hamod had stolen it. Mr Hamod had no corroborating evidence of this allegation. It remained as no more than an allegation in the pleading and an assertion in his statement of evidence. The evidence of Mr Damanik directly contradicted Mr Hamod's version of matters involving Galaxy. 645Mr Hamod then alleged that the prosecutors were in possession of evidence that Mr Adelman had verified the authenticity of the Platinum Certificate. This was another assertion made by Mr Hamod in the Record of Interview. The police had located Mr Adelman in Canada but had not been able to obtain any information from him. Mr Hamod's assertion in the Record of Interview did not make it unreasonable to proceed with the prosecution in the face of the information in their possession that the Platinum Certificate was not genuine. 646Finally, Mr Hamod alleged that Mr Muhlbauer had admitted to police on 20 January 1995 that the Platinum Certificate was genuine. There was no evidence of any such statement by Mr Muhlbauer. Mr Muhlbauer was not cross-examined to that effect in the Local Court, nor, for that matter, was Detective Senior Constable Day. There was thus no evidence to support the allegation. This allegation also remained a matter of assertion only. 647It follows that none of the pleaded allegations were made out. By contrast, there was a body of cogent evidence that countered the proposition that the prosecution was brought and maintained without reasonable and probable cause and with malice. There was also the evidence of Detective Senior Constable Day that he considered that he was dealing with a major fraud and it was part of his duties as a police officer to prosecute it. The information available to him was overwhelmingly that the Platinum Certificate was not genuine. In my opinion, the allegation that the police knew at any time that the Platinum Certificate was valid and the legitimate title to 4590 tonnes of issued by UBS failed completely. 648There was some material available to Detective Senior Constable Day which did not support that part of the prosecution based upon Mr Hamod having demanded money in return for the Platinum Certificate. That information was the content of the conversations between Mr Hamod and those with him and Mr Wall and the others present at the meetings on 20 January 1995. I have already dealt with those conversations in relation to false arrest. The transcript of those conversations support Mr Hamod's contention that he did not demand money during those meetings, in return for either the Platinum Certificate or for a certified copy of the Platinum Certificate. Rather, he made numerous statements that the procedure specified in the Buy/Sell Agreement was to be followed and the Platinum Certificate was to be authenticated before any money was paid. Mr Balding also gave evidence that in the days leading up to the meetings on 20 January, Mr Hamod instructed him that he was not asking for a deposit to be paid. 649However, Detective Senior Constable Day had been told by Mr Wall that an up-front fee or deposit had been demanded, but this was to be " outside of the contract ". Although Mr Wall was cross-examined in the Local Court proceedings, nothing was elicited from him that contradicted this evidence and he was not cross-examined at all in the proceedings before Harrison J. In addition, it became apparent to Mr Balding in the days leading up to the meeting that Mr Hamod had been having conversations with Mr Wall to which he, Mr Balding, had not been a party. There was also the clear evidence that Mr Hamod had been prepared to accept a deposit or up-front fee. Mr Balding gave evidence of this. The amount of the fee was negotiated with Mr Hamod's full involvement. Further, Mr Hamod, Mr Balding and others undertook arrangements on the morning of 20 January 1995, before proceeding to Sydney for the meeting, to have a bank facility available for the payment of the deposit that day. These were matters that corroborated Mr Wall's evidence that Mr Hamod was demanding an up-front fee. 650It will also be recalled that in his Record of Interview, Mr Hamod said that he had expected that the conversations on 20 January would be taped and that he thought there was something 'fishy' about the arrangements. That comment could have been an expression of bravado by Mr Hamod, given that he had been caught by a police operation, or it could have been true and thus, an explanation of his conduct on that day in the meetings in insisting on the prior validation of the Platinum Certificate. However, it is worth remarking at this point that it remained a mystery how the Platinum Certificate was going to be authenticated that day, as would have been necessary if the monies were to be paid that day, as Mr Hamod had arranged. 651Mr Hamod also fixed on the conduct of Mr Ludowici and Mr Wall, whom he alleged were out to 'get him'. Mr Hamod adduced no evidence in the proceedings to support this. Mr Ludowici and Mr Wall's evidence was that they left the investigation of the matter with police and did not agitate for Mr Hamod to be arrested or charged. Their role, after the initial report to police, was to cooperate in " Operation Cleggars " when requested. 652Notwithstanding the content of the conversations at the meeting on 20 January, Detective Senior Constable Day was in possession of a cogent body of material, at that time and thereafter, that was objectively sufficient to support the s 177BB charge which proceeded to a full hearing. The cross-examination of Detective Senior Constable Day in the Local Court demonstrated that he subjectively believed that Mr Hamod was involved in serious fraudulent activity. Likewise, his evidence as to his obligations as a police officer to arrest persons involved in serious criminal activity demonstrated that that was his purpose in bringing the prosecution. 653It follows that Mr Hamod has failed to make out ground 9. 654That leaves grounds 12 and 16. The complaint in ground 12 was that his Honour erred in questioning the basis of Mr Hamod's acquittal, a process that Mr Hamod said was an impermissible process in the determination of his claim in malicious prosecution. Had his Honour's determination of the malicious prosecution claim been based upon a questioning of the decision in the Local Court, there would have been some basis to this ground of appeal. However, that is not what his Honour did, as his reasons demonstrate. His Honour expressly stated, at [64], that " the correctness of otherwise of her Honour's conclusions and opinions and her decision is beside the point ". In my opinion, this ground should be rejected. 655Ground 16 complains that his Honour erred in dismissing the malicious prosecution claim in circumstances where he failed to have regard to certain evidence, including the transcript of evidence in the proceedings in the Local Court and the exhibits tendered in those proceedings. This ground substantially replicated the arguments Mr Hamod advanced in support of the transcript issue: see section (3) of these reasons. In that section I have dealt with the evidence upon which Mr Hamod relied as being critical to the malicious prosecution claim. As I have explained, some of the transcript was in evidence and, for the reasons I gave in section (3), neither that evidence nor the other parts of the transcript that Mr Hamod said were critical would have resulted in the malicious prosecution claim being upheld. So far as exhibits are concerned, many of the exhibits from the Local Court were tendered in evidence in these proceedings. Without an identification of the exhibits that Mr Hamod contended ought to have been considered by his Honour and were not, that particular complaint should be put aside.
Conclusion on malicious prosecution 656In any event, as the appeal was by way of rehearing, I have independently considered the evidence and have concluded that Mr Hamod not only failed to adduce evidence to support his claim, but the evidence demonstrated that there was reasonable and probable cause for Detective Senior Constable Day to subjectively believe in Mr Hamod's guilt. Further, viewed objectively, the material in the possession of the police was sufficient for a prudent and cautious person in the position of the prosecutor to conclude that Mr Hamod was probably guilty of the crimes with which he was charged. Also as I have indicated, there was no evidence that the prosecution was brought for an improper purpose and thus no evidence of malice. Accordingly, ground 16 should also be rejected. 657Another way to test the matter is to consider the five conditions referred to by Jordan CJ in Mitchell v John Heine set out at [572] above . The evidence established that Detective Senior Constable Day believed the accused was probably guilty of the offence. That belief was founded on cogent information he had in his possession on 20 January 1995 and which he further investigated prior to the commencement of the committal. That information provided a cogent basis for belief in Mr Hamod's guilt. I have already referred to the evidence to the contrary in the conversations in the coffee shop and at the banks on 20 January. However, it cannot be expected that evidence will be all one way in a serious crime investigation and there were other matters that suggested that those conversations did not represent Mr Hamod's true intentions in relation to the transaction. Detective Senior Constable Day clearly believed the evidence that pointed to the guilt of the accused. That belief was based on reasonable grounds, given the cogency of the information in his possession which was sufficient to justify a prudent prosecutor in believing in Mr Hamod's guilt. For these reasons, also, ground 12 should be rejected. 658In my opinion, grounds 9, 12 and 16 should be rejected.
Section (9): Injurious falsehood by members of the New South Wales Police
Ground 17: His Honour erred by failing to determine that Mr Hamod had demonstrated on the balance of probabilities that the first respondent was guilty of the tort of injurious falsehood
The pleaded case 659Mr Hamod's pleaded case in respect of the injurious falsehood claim is referred to at [21]-[22]. His allegation was that the State was liable to him for the tort of injurious falsehood, arising from media statements alleged to have been made by Sergeant Flinders and Detective Senior Sergeant Edgtton of the Police Fraud Enforcement Agency, published in certain newspapers on 22 January 1995 and also to Reuters, in circumstances where the officers making the representation knew that the Platinum Certificate was valid. 660The following false statements were alleged to have been made by members of the New South Wales Police to the media: (a): "That they (the police) held the belief that 'it could be the world's largest fraud attempt'." (b): "That 'we would say it's the biggest fraud attempt in Australia'." (c): "That 'it would certainly be among the largest if not the largest in the world'." (d): "That the police believed that the Platinum Certificate was forged." (e): "That the police had seized documents involving sums even larger than $60,000,000,000.00 with which [Mr Hamod] had been charged." (f): "That this was certainly the biggest fraud attempt in Australia's history". (g): "That [Mr Hamod] had been the managing director of a small South Coast engineering company which had gone bankrupt." (h): "That [Mr Hamod] had slashed the $78,000,000,000.00 price of the Certificate to just $250,000,000.00." (see sixth amended statement of claim, para (77)) 661Mr Hamod alleged in the particulars to para (77) that the statements were made by Sergeant Flinders of the Police Fraud Enforcement Agency and by Detective Senior Sergeant Edgtton and were reported in the Sunday Telegraph , the Sun-Herald and the Sydney Morning Herald on 22 January 1995 and also to Reuters. 662Mr Hamod pleaded (para (78)) that at the time of publication the named officers knew that the matters were false and concerned Mr Hamod as a result of discussions had with Detective Eastham of Nowra and Detective Sergeant Day and that the published statements were likely to damage him. 663Mr Hamod pleaded (para (80)) that it was improper for the representations to be made or the matter published when the members of the New South Wales Police force knew, or were in possession of sufficient information to know, that the Platinum Certificate was genuine, as had been corroborated by Mr Muhlbauer and by the false allegations made by Galaxy regarding the alleged theft of the Platinum Certificate. Mr Hamod pleaded that the material published was thereby actuated by malice in law. 664As to damage, Mr Hamod alleged (paras (81)-(83)) that after the publication of the material he had made attempts with overseas and international buyers to continue to sell the Platinum Certificate, but that as a result of the international press reports quoting what the police had said, he was unable to do so, such that he suffered loss and damage. He also alleged that the natural and probable result of the publications was the loss of the ability to trade internationally, or at all, and his inability to sell the Platinum Certificate. Mr Hamod pleaded that the Platinum Certificate remained unsold. 665The State's pleaded defence was by way of non-admission or denial of the matters pleaded. It appears that at trial, the State also relied, by way of defence, on the protection of the absolute privilege of witness immunity.
The newspaper publications 666Having regard to the allegations made in the pleadings and the State's defence, including the claim for witness immunity, it is necessary to set out the various publications upon which Mr Hamod based this claim. It is convenient to do so by reference to his Honour's identification of the pleaded allegation as against the relevant publication. Mr Hamod did not contend that this identification was wrong or incomplete. 667According to his Honour's judgment, the publication upon which Mr Hamod relied for the purposes of para (77)(a)-(d) was one published in the Illawarra Mercury on 21 January 1995. That publication was in the following terms (the italicised portions correspond to the pleaded allegations in para (77)(a)-(d)): " $66b fraud Police charge Nowra man, 45 A 45-year old Nowra man was charged in Sydney late last night with a $66 billion attempted platinum fraud. Police said last night they believed it could be the world's largest fraud attempt. [the para( 77)(a) allegation] Detective Senior Sergeant Mike Edgtton of the NSW Fraud Enforcement Agency said the man was arrested after a two-week investigation. He will appear in Central Local Court, Sydney, today. ' We would say it's the biggest (fraud attempt) in Australia,' he said. [the para (77)(b) allegation] Asked how it rated in international terms, Snr Sgt Edgtton said: 'It would certainly be among the largest, if not the largest (in the world).' [the para (77)(c) allegation] Police allege the man from Nowra tried to negotiate a certificate of guarantee with a Swiss bank for 4590 tonnes of platinum worth $A66 billion. Police believe the certificate was forged. [the para (77)(d) allegation] Snr Sgt Edgtton would not identify the Swiss bank that instigated the FEA investigation. The international law enforcement agency, Interpol, was 'not yet' involved, he said. Police say they planned to release a full statement today. Platinum was priced at $A554.26 a troy ounce yesterday - more expensive than gold, which traded at $A502.35 per troy ounce" (at judgment [163]) 668The allegation in para (77)(e) and (h) involved statements made in a number of newspaper articles reporting on Mr Hamod's appearance at Sydney Local Court on 22 January 1995. Rather than setting out each article and then identifying which parts Mr Hamod relied upon (there were nine pages of articles), it is sufficient to refer to the pleaded allegation and the corresponding statement in the articles, including, as necessary, any contextual portion of the articles. 669As to para (77)(e): "That the police had seized documents involving sums even larger than $60,000,000,000.00 with which [Mr Hamod] had been charged." This statement appeared in the Sunday Telegraph of 22 January 1995. The full text of the relevant portion was: " Police told the court they had seized documents involving sums even larger than $US60 billion with which Hamod had been charged yesterday." (emphasis added) 670As the emphasised portion demonstrates, the reported statement was made in court by the police prosecutor. 671As to para (77)(f): " That this was certainly the biggest fraud attempt in Australia's history ". This phrase appeared in an article in the Sunday Telegraph article of 22 January 1995. The sentence from which this phrase was taken was in the following terms: "[t]hey were searching for other individuals allegedly involved in the scam, which police confirmed was certainly the biggest fraud attempt in Australia's history" and immediately followed the paragraph the subject of the pleading in para (77)(e). It was followed by the sentence: "Lebanese-born Mr Hamod ... appeared in court dressed in a ... business suit." 672The balance of the article was a report of what Sergeant Flinders told the Court as to the police allegations and a report of what Mr Hamod's legal representative said to the Magistrate. It also reported that the Magistrate refused bail and had remanded Mr Hamod in custody to appear on the following Tuesday. 673Although that part of the newspaper article which is subject of the allegation in para (77)(f), does not expressly say that the statement was made in court, the context clearly demonstrated that was so. 674As to para (77)(g): "That [Mr Hamod] had been the managing director of a small South Coast engineering company which had gone bankrupt". This information appeared in the Sunday Telegraph article of 22 January 1995. The context in which this statement was reported was as follows: "Mr Martin said his client was living on $130 a week unemployment benefits and had three children aged 17, 16 and 12. Hamod had been the managing director of a small South Coast engineering company which had gone bankrupt. This had caused Hamod to have a nervous breakdown and he was being treated for psychiatric problems, he said. 'The defendant fell into this situation on the advice of his doctor who told him to go out and get some work because it 'will be good for you'. Well, he did.' Mr Martin said his client had acted in good faith and had believed in the genuineness of the documents." Mr Martin was identified in an earlier paragraph of the article as Mr Hamod's solicitor. 675It is absolutely clear from the report that the statement subject of para (77)(g) was made by Mr Hamod's solicitor and thus is not an allegation which is maintainable against the State. 676As to para (77)(h): " That [Mr Hamod] had slashed the $78,000,000,000.00 price of the Certificate to just $250,000,000.00 ." This appeared in the Sun-Herald article of 22 January 1995. The relevant part of the article was: "A BANKRUPT on the dole tried to sell $US60 billion (almost $A78.2 billion) worth of platinum for $250 million in Australia's biggest attempted fraud, police alleged in Central Court yesterday. Police claimed the 44-year-old unemployed father of three teenagers from Nowra on the NSW south coast was in possession of forged documents, allegedly guaranteed by the Union Bank Switzerland, for 4,590 tonnes of platinum. When Anthony Hamod tried to arrange a sale of the platinum certificates through investment bank Utilis Australia Pty Ltd, in Sydney, he allegedly slashed the $78 billion to just $250 million, police told the court. Bank officials became suspicious and police from the NSW Fraud Enforcement Agency were alerted. The court heard Hamod was arrested last week after listening devices were planted in bank offices and the family man was taped allegedly trying to set up the deal." 677The State did not take issue with the admissibility of the newspaper publications as evidence of statements made by members of the New South Wales Police, although the reporters may not have reported correctly. That seems possible in this instance, since it is unlikely that the police prosecutor would have talked of slashing $78 B to $250 M when the $250 M was only the alleged upfront fee.
The trial judge's reasons 678Harrison J dealt with Mr Hamod's claim for damages for injurious falsehood at [161]-[171]. His Honour observed, at [162], that Mr Hamod appeared to contend that because Galaxy had made false allegations that the Platinum Certificate had been stolen from it, it must be genuine. I have already dealt with Mr Damanik's evidence above. There was nothing in that evidence to support that allegation. Nor was there any support for the allegation in Mr Hamod's own evidence beyond his assertion. Nor was there any other evidence that supported that allegation. 679His Honour's approach to the determination of this claim was essentially to uphold the State's submissions. Thus, at [169], his Honour noted the arguments of the State that Mr Hamod's claim for damages for injurious falsehood depended upon Mr Hamod's ownership of the Platinum Certificate. However, his Honour noted that Mr Hamod did not allege that he owned the Platinum Certificate. Rather, he contended that because of the media reports, he had been unable to sell the Platinum Certificate. 680His Honour noted the State's next argument, that there was no evidence of Mr Hamod's entitlement to sell the Platinum Certificate, or that he had made a loss due to the inability to sell it. The State also contended that there was no evidence that the statements were made maliciously and, further, Mr Hamod was still faced with the difficulty that he maintained that the Platinum Certificate was genuine, when the evidence established conclusively that it was not. 681At [170], his Honour referred to the State's contention that anything said in court by the former Sergeant Flinders or anything said or done preparatory to giving evidence in court, even if that evidence was perjured, was protected by the absolute privilege of witness immunity. His Honour noted that Mr Hamod did not argue to the contrary. His Honour concluded, at [171], that Mr Hamod's case alleging injurious falsehood against the State failed. There was no other relevant reasoning by his Honour.
Submissions on the appeal 682In his principal written submissions and in his written submissions in reply on this ground of appeal, Mr Hamod recognised that in a claim for injurious falsehood, it was necessary for a plaintiff to prove actual economic loss, that the offending statement was false and that it was made with intent to cause injury without lawful justification. He acknowledged that the requisite intention is often described as malice. 683Mr Hamod submitted that the extract from the Illawarra Mercury contained the false statements that the activities involved were an " attempt at a Platinum fraud "; that the police believed that the activities involved " could be the world's largest fraud attempt "; that on international terms it was " certainly ... among the largest if not the largest in the world "; and that he had proved on the balance of probabilities that the statements were false. It should be noted that there was no pleaded case as to the first of these and the relevant statement in the newspaper was, " A 45 year old Nowra man was charged ... with a $66 billion attempted platinum fraud ". 684Mr Hamod contended that the police made no attempt to properly inform the public of what he had told them. In particular, he stated that the words: "[t]o our knowledge this is the largest fraud ever attempted in Australia and we believe it is certainly among the largest in the world, if not the largest" could not have been made based on an honest belief held by the police on 20 January 1995, having regard to the extensive Record of Interview he had undertaken. Mr Hamod also submitted that a clear reading of the various media releases demonstrated that they were issued prior to the court appearance. He gave by way of example the media release published in the Sydney Morning Herald on 22 January 1995 containing the allegation particular (h), which made no mention of a statement made in court. The text of the article containing particular (h) is set out above at [676]. As I stated at [677], it is absolutely clear that the statement was made in court. 685Mr Hamod next submitted that his Honour was in error in accepting that the appellant had to establish ownership of the Platinum Certificate. He pointed out that the Certificate could be negotiated by a bearer subject to the right of prior interested parties. 686As to the element of malice, Mr Hamod said that the statement, made outside the court to members of the public, of words such as " to our knowledge this is the largest fraud ", involved the improper use of conclusive language and was malicious. I pause to note no such statement appeared in the article in the Illawarra Mercury or in any other newspaper referred to in the pleadings. Mr Hamod also submitted that he had proved the requisite element of malice, as the statements were exaggerated: see Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275.
The State's submissions in respect of the claim for injurious falsehood 687The State submitted that Mr Hamod could not and did not prove that the publication of any statement made by police was made outside of court proceedings. It followed on this submission that the publications of which Mr Hamod complained were protected by the absolute privilege of witness immunity. 688The State also submitted that Mr Hamod had not led any evidence to establish that others had been induced not to deal with him, nor had he led any evidence of loss. The State postulated rhetorically that absent direct proof of the validity of the Platinum Certificate, how could Mr Hamod have established loss? Mr Hamod responded to this submission by pointing out that the proceedings before his Honour proceeded on the question of liability only.
The nature of the cause of action in injurious falsehood 689In deference to Mr Hamod I have set out his submissions in more detail than I otherwise would have done, as I consider that this ground of appeal is answered by three basic propositions. 690First, special, that is, actual damage is an element, indeed, the gist, of the cause of action of injurious falsehood. Whilst it is true that the matter proceeded before his Honour on the basis of liability only, Mr Hamod had to adduce evidence that he suffered some damage. He did not have to prove the quantum of that damage. Secondly, a person alleging injurious falsehood must prove that the statements were false and were made with malice. Thirdly, the statements relied upon in the sixth amended statement of claim, para (77)(e)-(h), were made in court and are thus protected by the immunity that attends the making of statements in court. 691It is necessary to consider each of these propositions against the principles that govern the tort, to explain why I consider that they are a complete answer to Mr Hamod's claim of injurious falsehood. 692The tort of injurious falsehood will give rise to a claim in damages where a plaintiff establishes that a person maliciously published a false statement about or affecting another or another's property; the statement was calculated to cause others not to deal with the plaintiff; and actual damage resulted: Fleming's The Law of Torts , 10th ed (2011), pp 797-798, 30.240; see also Ratcliffe v Evans [1982] 2 QB 524. The tort " protects against provable economic loss resulting from false and malicious statements ": Ballina Shire Council v Ringland (1994) 33 NSWLR 680 per Gleeson CJ at 694. The tort thus requires proof of falsity, publication, malice and special, that is, actual damage: see Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388, especially at 406.
Was actual damage proved? 693Mr Hamod did not prove that he had suffered actual damage. He merely asserted that he had lost the ability to trade either internationally or at all in order to sell the Platinum Certificate. Leaving aside whether he could ever have traded a bogus certificate, he did not prove the pleaded assertion.
Were the statements also false and made with malice? 694Mr Hamod was also required to prove that each of the statements upon which he relied as constituting the tort was false. Subject to what I say below, it would have been sufficient if he was able to establish one such statement was false. However, Mr Hamod called no evidence to support his allegations as pleaded in para (77)(a)-(c). As I understand his case, he relied upon the fact the charges against him had either been withdrawn, not proven at the committal stage, or in respect of which he had been acquitted. In my opinion, as examination demonstrated, that was not sufficient to establish that the statements were false. Some evidence of falsity was required of each of the matters pleaded in para (77)(a)-(c). 695The first statement relied upon: see para (77)(a), was a statement of belief, presumably of Detective Senior Sergeant Edgtton, although the newspaper article does not make that entirely clear. The second statement, which was also attributed to Detective Senior Sergeant Edgtton: see para (77)(b), is also probably a statement of belief: viz " we would say ". There was no evidence, either by way of admission or cross-examination, to establish that Detective Senior Sergeant Edgtton did not hold this belief. The third statement is also likely to have been a statement of the belief of the police officer making the statement. 696As I understand Mr Hamod's pleading, he alleged that the statements, that this was the " world's largest fraud attempt ", were false. In other words, the falsity alleged was that Mr Hamod had committed a fraud and/or had committed a fraud of significant magnitude. This is apparent from para (78), where he pleaded that the police officers making the statements knew that the published statements were false as a result of discussions with Detective Sergeant Eastham and Detective Senior Constable Day. 697The pleaded statements alleging fraud were connected with the statement that Mr Hamod had attempted to negotiate the Platinum Certificate which police believe was forged. This was the pleaded false statement in para (77)(d). Mr Hamod's case depended upon the Platinum Certificate being genuine to the knowledge of the police. Likewise, the pleaded special damage was an inability to sell the Platinum Certificate, which he contended was genuine. As I have indicated, the answer to these aspects of his claim is that Mr Hamod failed to prove that the Platinum Certificate was genuine. 698There is another aspect of the case on malice that needs to be mentioned. Even assuming, for the purposes of argument, that it might be inferred that the article in the Illawarra Mercury contained an assertion that Mr Hamod had committed a fraud and that the statements were false, it was still necessary for Mr Hamod to prove that the statements were made with malice. " Malice ", for the purposes of this cause of action, has been described as involving " the making of the statement for some indirect, dishonest or improper motive ": see London Ferro-Concrete Co v Justice 1951 68 RPC 261 at 265; Seville v Constance [1954] 1 WLR 47 at 490; or with " an intent to injure without just cause or excuse ": Joyce v Motor Surveys [1948] Ch 252. Fleming's The Law of Torts , 10th ed , (2011) at pp 797-798, 30.240 states that the second formulation was preferred in Joyce v Motor Surveys. 699Harrison J referred to the duties of a police constable in the following terms: "94 ... A police officer is under a duty to prevent and investigate crime: Collins v Wilcock [1984] 1 WLR 1172 at 1178 F-G; Director of Public Prosecutions v Puskar (Supreme Court of New South Wales, Newman J, 9 July 1992, unreported). 95 By the common law in Australia, a constable owes to the general public a duty to enforce the criminal law: R v Commissioner of Police of the Metropolis; Ex Parte Blackburn [1968] 2 QB 118. It is the function of a constable to bring or to assist in bringing prosecutions as part of his or her duty to enforce the law: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 (at 283). A constable acts as a peace officer and exercises an original authority in this respect: Enever v R [1906] HCA 3; (1906) 3 CLR 969 at 977; Attorney-General for New South Wales v Perpetual Trustee Company Limited (1954) 92 CLR 113 at 119. Neither changes in organisation nor the imposition of ever increasing statutory duties has altered the fundamental character of the constable's office: see for example, Attorney-General for New South Wales v Perpetual Trustee (supra) at 120 - 121 and Campbell JA in New South Wales v Tyszyk [2008] NSWCA 107 [106]-[111] ..." 700Here, the Fraud Squad had been contacted by UBS, a major banking institution, with information that a person was trying to pass off as genuine and to sell a false bullion certificate bearing its name. A special investigation had been set up by the police for the purposes of arresting the person involved. The statements made and published in the Illawarra Mercury were statements made regarding the outcome of that investigation. There was no suggestion in the evidence that the police had any motive in making the statements other than incidental to the proper enforcement of the law. Detective Senior Constable Day's cross-examination in the Local Court was expressly to that effect.
Conclusion on injurious falsehood: para (77)(a)-(d) 701In my opinion, his Honour was correct in dismissing the claim insofar as it was based upon para (77)(a)-(d). On either of the formulations referred to in Fleming , Mr Hamod failed to prove that the police officer or officers who made the statements in para (77)(a)-(d) acted maliciously. There were no admissions to this effect by the police, nor any cross-examination of the police officer or officers upon which such a finding could be made. The statements appeared to have been made as part of a media conference relating to the arrest. Notwithstanding that the prosecution failed, it cannot thereby be inferred that the statements were made for an indirect, dishonest or improper motive or with an intent to injure without just cause and excuse.
Were the statements alleged in para (77)(e)-(f) and (h) protected by the immunity of statements made in court or made in relation to court proceedings? 702The balance of the statements alleged in para (77)(e)-(f) and (h) (the statement in para (77)(g) not being by the police) were protected by the immunity which is given to statements made in court. 703The immunity is a long-established principle of the law. It was described by Lord Mansfield in R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 at 530 as follows: "... neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office." 704The immunity was most recently confirmed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1 where the immunity was identified as dating back to the early sixteenth century. Gleeson CJ, Hayne and Heydon JJ said at [39]: "From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant." 705The foundation of the immunity is ultimately, although not solely, based on considerations of the finality of litigation. As their Honours pointed out, at [41]: "But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises." 706In D'Orta-Ekenaike the Court's comments were directed most particularly to the immunity insofar as it relates to the evidence given by witnesses in court. I refer to this below when dealing with the conspiracy claims against UBS. 707The immunity has been the subject of detailed analysis in many cases. These are discussed in Ollis v New South Wales Crime Commission [2007] NSWCA 311; 177 A Crim R 306 and Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [ 2007] 70 NSWLR 268. It is not necessary to repeat any of that analysis here. The position is plain that subject to the recognised exceptions, a statement made in court is protected by the immunity. 708The exceptions to the principle were commented upon in Jamieson and Brugmans v R [1993] HCA 48; 177 CLR 574 at 582, [6], where Deane and Dawson JJ observed that the immunity was qualified by a number of well-established exceptions. In the criminal context, their Honours referred to those exceptions as being perjury, contempt of court and, depending on the circumstances, perverting the course of justice. Their Honours added, at [8], that subject to those qualifications and any statutory provision: "Lord Mansfield's proposition prevents the words 'spoken in office' by a party ... from being made the basis of civil proceedings for defamation or misrepresentation ... or of criminal proceedings." (emphasis added). 709Their Honours added that in the case of a party or that party's legal representative, the phrase " words spoken in office " encompasses " anything said ... in the ordinary course of any proceeding in a court of justice ": see R v Beydoun (1990) 22 NSWLR 256 at 258. It also encompassed statements in court " although [made] falsely and maliciously and without any reasonable probable cause ": Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264. It followed, in their Honours' view, the general principle was applicable to assertions contained in a pleading such as a statement of claim. In this regard, their Honours observed that, not surprisingly, words spoken in pleadings provided some of the earliest examples of the application of the principle. 710In R v Beydoun Hunt J, (Wood and McInerney JJ agreeing) examined the development of 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 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. That rule in relation to civil liability has now been applied to statements made (orally or in writing) by witnesses, parties , judicial officers and advocates ; a number of the relevant authorities are collected in the judgment of Starke J in Cabassi v Vila (1940) 64 CLR 130 at 140. Notwithstanding an obiter dictum to the contrary over 100 years ago by Lord Coleridge CJ ( Seanam v Netherclift (at 543)), I am satisfied that the current state of the law is that all such categories may now be regarded as benefiting equally from the rule. The consequence is that the rule applies generally, provided that the statements in question were made in the course of and with reference to judicial proceedings , and even if they were made maliciously, were without justification or excuse, or were irrelevant to every issue in the proceedings in the course of which they were made: Seanam v Netherclift at 56, 58, 60-61; Munster v Lamb (1883) 11 QBD 588 at 599." (emphases added) 711His Honour had noted, at 256, that the rule operated not only to preclude civil actions for defamation, but also to preclude civil actions claiming damages for false evidence given in proceedings to which the plaintiff was a party: see Hargreaves v Bretherton [1959] 1 QB 45 at 54; or for damages for conspiracy to injure by the giving of false evidence: Cabassi v Vila [1940] HCA 41; 64 CLR 130 at 141, 145, 151; and to preclude any other civil action on the case based directly upon such evidence; see, inter alia, Henderson v Broomhead (1859) 4 H & N 569; 157 ER 964 at 968. His Honour noted that civil actions such as malicious prosecution and abuse of process were not precluded by the rule. His Honour observed that in those cases, such proceedings were not based directly upon statements made in the course of the judicial proceedings, but rather upon the instigation or continuation of the proceedings themselves.
Conclusion on injurious falsehood: para 77(e)-(f) and (h) 712Mr Hamod's claim based on injurious falsehood does not fall within the recognised exceptions. Rather, as the elements of the tort itself indicate, it falls within the same category as claims in defamation or misrepresentation. It is clear, therefore, that the claim based on injurious falsehood should be rejected. I pause only to note that Mr Hamod's counsel did not deal at all with the State's case based on the immunity and this was notwithstanding that Harrison J had expressly drawn attention to the fact that Mr Hamod had not responded to the State's reliance on the immunity at first instance. 713I wish to add one thing in relation to this ground of appeal. In his pleadings, Mr Hamod did not set out the full text of the statements he relied upon, nor their context in the surrounding paragraphs of the newspaper articles. Whilst some selectivity was appropriate to keep the pleading in appropriate proportion, that should not have been done at the expense of accuracy. Both in his pleadings and in his submissions to this Court, he contended that the statements were made prior to his court appearance. That was just not so in respect of paras (e)-(h). For my part, I consider it to be irresponsible for a pleading or a submission to assert something which is so plainly unsupportable. 714The most egregious example was in respect of para (e), where Mr Hamod had simply ignored the four words that preceded the pleaded allegation. I have set out the context in which the other statements were made, one being made by his own solicitor, and it is not necessary to repeat them. Their context was so plain that there was no excuse for continuing to rely upon them as a basis for the claim in injurious falsehood. 715I would also add that, unfortunately, the State's written submissions, which failed to refer to the particular statements in the newspaper reports or to the law relating to witness immunity, were not of assistance to the Court. Nothing was added in oral submissions. Had the State attended to these matters, particularly in the written submissions, Mr Hamod's legal representatives may have realised that there was nothing in this ground of appeal and abandoned it before the hearing. The result was that the Court was required to undertake the search in the fine print of nine pages of poorly reproduced material for the relevant material upon which Mr Hamod relied and which the State contended did not bear out his claim. The Court is entitled to rely upon the assistance of the legal representatives to aid it in the determination of disputes. Unfortunately, that assistance was not forthcoming on this occasion.
Section (10): The causes of action based in conspiracy by UBS
Ground 21: His Honour erred in determining that the causes of action in conspiracy against UBS were not proven
The pleaded case 716Mr Hamod contended that UBS had committed the tort of conspiracy to injure by unlawful means or alternatively had committed the tort of conspiracy to injure by lawful means. 717Mr Hamod's pleaded case in respect of the tort of conspiracy to injure by unlawful means is referred to at [27]-[29] and by lawful means at [30]. In essence, Mr Hamod alleged that UBS had entered into an agreement, arrangement or understanding with UBS AG to knowingly make false statements to the New South Wales Police that the Platinum Certificate was fake, a forgery and invalid, so as to prevent Mr Hamod from selling it to a third party. 718The persons said to have acted on behalf of UBS in the conspiracy to injure by unlawful means were Mr McMurtrie, Mr Ludowici, Mr Muhlbauer, Mr Wall and Mr Teh. The persons said to have acted on behalf of UBS AG, at that stage, were said to be unknown to Mr Hamod. The overt acts of the conspiracy were alleged to be statements made by each of these persons (other than Mr McMurtrie) and by Mr Schicker to police and in the evidence in the Local Court. 719Mr Hamod relied upon the same overt acts by the same persons in support of his claim that UBS was liable to him for the tort of conspiracy to injure by lawful means. 720UBS denied both conspiracy claims and relied, inter alia, upon the absolute privilege of witness immunity in answer to all claims against it.
Trial judge's reasons 721The trial judge, after reviewing the principles governing these causes of action, concluded, at [199], that Mr Hamod had not proved any relevant agreement, had not proved an intention to injure him and had not proved any unlawful means. His Honour found that the statements upon which the claims had been based were truthful. His Honour also held that there was no loss or damage. As his Honour said, the Platinum Certificate was worthless. Earlier, at [192], his Honour had noted that an essential aspect of the pleading in respect of these two claims was that the Platinum Certificate was valid and authentic.
Conclusion on the conspiracy claims 722In dealing with the conspiracy claims, his Honour did not deal with the defence based on witness immunity. He did, however, deal with witness immunity when dealing with the claim against UBS for injurious falsehood. Nonetheless, as the matter was raised on the pleadings and in submissions, I am of the opinion that the Court may dispose of this ground of appeal on that basis. If the immunity operates, all other arguments are superfluous. 723The principles governing the immunity have already been discussed in some detail above at [703] ff. It is not necessary to repeat what has there been said. Relevantly, for the purposes of this ground of appeal, the immunity applies to statements made in Court. As Gleeson CJ, Hayne and Heydon JJ in D'Orta-Ekenaike v Victoria Legal Aid observed at [39]: "From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case." 724The immunity also extends to statements made out of court, provided that the statements were connected in a relevant way to the court process. The circumstances in which this will be so were considered in Ollis v New South Wales Crime Commission where I said, at [48]: "The authorities establish that the immunity extends to a range of statements made out of court but which are connected in a relevant way to the court process. These include statements made in pleadings: Jamieson and Brugmans at 583 [8]; statements from potential witnesses in criminal proceedings made at a time when proceedings are in contemplation but not yet commenced: Evans v London Hospital Medical College (University of London) [1981] 1 All ER 715; statements made out of court that could fairly be said to be part of the process of investigating crime with a view to prosecution: Taylor & Anor v Director of the Serious Fraud Office & Ors [1999] 2 AC 177: see generally Meadow v General Medical Council [2007] QB 462 at 475 [12]; [2006] EWCA Civ 1390." 725In this case, Mr Hamod relied upon the statements made to the police in the course of preparing the police brief for the purposes of the prosecution, as well as on the evidence of these persons in court. In accordance with the principles of witness immunity, those statements attract the immunity and therefore could not be the basis for the claims made by Mr Hamod in conspiracy. 726I should add that, in any event, I consider there was no error in any of his Honour's findings in rejecting this claim. 727It follows that ground 21 should also be rejected.
Ground 13: His Honour erred by determining that the evidence of Jason Lymbery was of no obvious value to Mr Hamod's case and can be disregarded without affecting Mr Hamod's case against either of the respondents in any way 728Mr Lymbery was a small shareholder in the company Hamock Investments. His involvement with that company related to its import business of products from the Middle East. The evidence indicated that he was to receive $20 M if the Platinum Certificate was sold. He was in Sydney with Mr Hamod on 20 January 1995 when Mr Hamod was arrested. 729Mr Lymbery was a witness in Mr Hamod's case. His evidence in chief was provided in a statement dated 19 May 2008. In addition, two other statements made by Mr Lymbery were in evidence. The first statement was one made on 20 January 1995 when questioned by Fraud Enforcement Agency officers. The second was a statement made to Nowra police on 2 March 1995, when he said that he wanted to add to his statement made on 20 January 1995.
Trial judge's reasons 730His Honour stated, at [65], that considerable portions of Mr Lymbery's 19 May 2008 statement were irrelevant in that they dealt with subject matter wholly unrelated to the factual or legal issues in the proceedings. His Honour also commented that to the extent the statement contained relevant material, it was almost exclusively in inadmissible form. 731His Honour noted that Mr Lymbery had been extensively cross-examined by senior counsel for each of the respondents, although, apart from minor exceptions, the cross-examination did not address the substance of what was contained in his statement of evidence. His Honour also noted that some of Mr Lymbery's statement of evidence corroborated the immediate circumstances surrounding Mr Hamod's arrest. However, as those matters were not controversial as between Mr Hamod and the respondents, his Honour concluded, at [66], that Mr Lymbery's evidence was of no obvious value to Mr Hamod's case and could be disregarded without affecting the case against either of the respondents in any way.
Mr Hamod's submissions 732Under ground 13 of the appeal, Mr Hamod contended that in dealing with Mr Lymbery's evidence in this way, his Honour failed to have regard to Mr Lymbery's 2 March 1995 statement. Mr Hamod contended that the assertions in the 2 March 1995 statement corroborated what Mr Hamod had asserted both prior to and on the day of arrest, in particular, that there could be no transaction unless the intended buyer authenticated and validated the Platinum Certificate. Mr Hamod also contended that it was apparent from Mr Lymbery's 2 March 1995 statement that it was Mr Balding who used the word " sell ", not Mr Hamod, in the discussions at the Advance Bank on the morning of 20 January 1995 before the group drove to the meeting in the city. 733Mr Hamod submitted therefore that Mr Lymbery's 2 March 1995 statement was relevant to the issue of reasonable and probable cause in the maintenance of the prosecution, as well as to malice. He further submitted that Mr Lymbery's statement was made voluntarily and that it could not be suggested that Mr Hamod had assisted Mr Lymbery in making it because Mr Hamod was in prison on remand at the time the statement was made. 734This last submission was undoubtedly a reference to the attack UBS had made upon Mr Lymbery in cross-examination on his 19 May 2008 statement. That attack was based on the similarity of paragraphs of Mr Lymbery's 2008 statement with paragraphs of the statement of Mr El Teres, who was also a witness in Mr Hamod's case. Indeed, some paragraphs were identical. UBS challenged Mr Lymbery on the basis that Mr Hamod had prepared the statement and that Mr Lymbery had merely signed it without any original input by him. Mr Lymbery denied this was so. He said that he dictated the statement to Mr Hamod, who had typed it up.
Nature of Mr Lymbery's evidence 735For present purposes, the significant evidence in Mr Lymbery's 2 March 1995 statement was para (8), in which he referred to a telephone conference with Mr Wall on 17 January 1995, at which Mr Balding and Mr Lees were also present. He said Mr Wall and Mr Hamod had the following exchange: " 'My his buyers are ready to go they like to pay 250 million dollars cash to secure the certificate.' He then said, 'The money will come through the Chase Manhatten Bank.' I remember [Mr Hamod] saying something like, 'We need commitment from the buyer.' He also said something to the effect, 'We will not accept any money until the buyer has come back with a letter saying that they have authenticated and validated the certificate." 736Paragraph 8 was subject to a ruling by his Honour under the Evidence Act , s 136 as being subject to the " Usual Communication Objection ". Given that his Honour stated that the application that the statement be subject to a ruling under s 136 was " not unreasonable " and that he would admit the statement, it is likely that he admitted the document subject to the " Usual Communication Limitation " and the use of the word " objection " was a slip. The meaning of the " Usual Communication Limitation " is set out below at [755]. 737Even subject to the " Usual Communication Limitation ", that portion of para (8) set out above was corroboration of Mr Hamod's evidence that at all times he was insisting on validation and authentication of the Platinum Certificate prior to his being paid any monies. To that extent, the evidence was relevant and ought to have been considered by his Honour. 738In his 2 March 1995 statement, Mr Lymbery also said that on 20 January 1995, he travelled to Sydney with Mr Hamod, Mr Balding, Mr Lees, Mr Done and Mr El Teres. He said the first stop was at the Advance Bank in Liverpool, where they met people who " looked like Bank Managers ". They then met with two of the Bank's employees. He said that Mr Balding led the discussion and said: "We are trying to sell a Certificate of Deposit of Platinum, and if it is successful we are looking for a Bank which would receive a deposit in the sum of two hundred and fifty million upwards." (emphasis added) 739Mr Lymbery stated that the Advance Bank informed them that they could not handle a deposit of that size and suggested they try the Chase Manhattan Bank in the city. He said that Mr Balding made a telephone call to that Bank and asked them whether, if they were successful on the sale of the Platinum Certificate, they could handle payments of $250 M and subsequent payments. He said that Mr Balding hung up and then received a telephone call back from Chase Manhattan about 10 minutes later. He said that it " appeared as though they said they could handle the deposit ". 740Mr Lymbery also said, at para (11) of the 2 March 1995 statement, that Mr Balding asked whether they could photocopy the Platinum Certificate and have those copies signed by the Advance Bank personnel. After the Platinum Certificate had been copied, Mr Lymbery said that he saw Mr Balding and Mr Lees sign the document and Mr Done sign on behalf of the Bank. He said that after this they left the Advance Bank and went to UBS in Sydney. 741Mr Hamod's submission that Mr Lymbery said that it was Mr Balding who used the words " to sell " is borne out by Mr Lymbery's statement. According to Mr Lymbery, Mr Balding did the talking at the meeting. However, the fact that someone other than Mr Hamod used the word " sell " does not prove anything. The comment was made in Mr Hamod's presence. Neither Mr Hamod nor Mr Lymbery suggested that Mr Balding made statements to the bank officers that were untrue, or outside his instructions, or not in accordance with what Mr Hamod required to be done.
Conclusion on Mr Lymbery's evidence 742In my opinion, Mr Lymbery's evidence should not have been disregarded by his Honour. The corroboration it provided of Mr Hamod's evidence went beyond the events surrounding Mr Hamod's arrest. However, in my view, regard to Mr Lymbery's evidence could not possibly have brought a different conclusion from that at which his Honour arrived, and it does not alter my conclusion that the claims against the State were not wrongly dismissed. 743I would therefore reject ground 13.
Section (12): The natural justice issues: grounds 1, 2, 5, 6, 8, 10 and 11 744Mr Hamod complained that his Honour failed to give adequate reasons for a number of comments in the judgment in respect of his evidence and thus denied him natural justice. 745The comments of which Mr Hamod complained were as follows: (1) As to ground 1: "The principal statement ... reads like a spy thriller or an international best selling crime novel. The extent to which any part of the statement bears relevantly or even remotely upon any of the disputed issues called up for determination by me is often difficult, and sometimes even impossible, to discern" (see at judgment [19]) (2) As to ground 2: "Much of what [Mr Hamod's statement] contains is completely irrelevant to any single issue and would seem to be the result of some unrestrained and misdirected editorial influence exerted by Mr Hamod in the face of or in the absence of advice to the contrary" (see at judgment [20]) (3) As to ground 5: "... the so-called evidence (upon which [Mr Hamod's case] appears to rely)" (see at judgment [22]) (4) As to ground 6: "And so the adventure goes on" (see at judgment [38]) (5) As to ground 8: "Immediately preceding par 529 of Mr Hamod's statement there appears the heading 'Unlawful Arrest and False Imprisonment' ... They are on one view a rambling series of apparently but not obviously related reminiscences by Mr Hamod" (see at judgment [43]) (6) As to ground 10: "Her Honour [Magistrate Horler] ultimately came to a conclusion, in my opinion controversially, that Mr Hamod had every reason to form the view that the certificate was genuine and that it represented an underlying transaction between a former President of Indonesia and UBS" (see at judgment [55]) (7) As to ground 11: "... her Honour was satisfied, also in my opinion controversially, that Mr Hamod never believed the certificate to be false but to the contrary held the belief that it was genuine and that that belief was reasonably held" (see at judgment [55]) 746Mr Hamod raised additional points of appeal in respect of three of these grounds as follows: (1) ground 6 in which he alleged actual bias; (2) ground 8, in which Mr Hamod alleged that his Honour's finding was erroneous; (3) ground 10, in which Mr Hamod alleged that his Honour took into account an irrelevant consideration.
Principles relating to an absence of reasons 747Mr Hamod submitted, in accordance with Beale v The Government Insurance Office of NSW (1977) 48 NSWLR 430 at 442-444 that the following principles apply to the content of the duty of a judge to give reasons: "a) It is an incident of judicial duty for a judge to consider all the evidence in the case but plainly unnecessary for a judge to refer to all of the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend as the duty to give reasons does upon the circumstances of the individual case. b) A judge should refer to relevant evidence but there is no need to refer to the relevant evidence in detail especially in circumstances where it is clear the evidence has been considered. c) Where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. d) Where conflicting evidence of a significant nature is given, the evidence of both sets of evidence should be referred to. e) A judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. f) Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. g) A judge should provide reasons for making relevant findings of fact and conclusions and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. h) There must be a balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons which involves the adoption of at the least a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal" 748These propositions correctly state the principles to which Meagher JA referred in Beale v GIO. In Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Hayne J explained the jurisprudence which underpins an attack on a judicial decision for lack of reasons as follows: "129 Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction. 749The grounds of appeal considered in this section of the judgment have to be determined against these principles.
Mr Hamod's submissions 750Mr Hamod submitted in respect of grounds 1, 2 and 6 that, in circumstances where his Honour had directed that the matter proceed by way of statements, he should have given reasons as to why he considered that Mr Hamod's statement of evidence: "... was extravagant or was analogous to a 'spy thriller' or 'international best selling crime novel' and further that the material in HH's view was not particularly relevant to any of [Mr Hamod's] causes of action in any event." 751Mr Hamod also submitted that, in accordance with his obligations to give reasons, his Honour was required to refer to such evidence in the statement as was relevant. Mr Hamod continued that his Honour was also required to set out what parts of the statement of evidence he had considered, why parts of the statement had not been considered (if that was the case) and if the statement had not been considered at all, why the evidence in the statement was not important. Mr Hamod further submitted that his Honour's comment that: "... the statement was analogous to a 'spy thriller' or 'crime novel' required reasoning so that [Mr Hamod] at least at a minimum could understand why that was so." 752It is apparent, in my opinion, that his Honour read the whole of Mr Hamod's statement of evidence. This emerges from a number of his Honour's comments. For example, in [22], he said: "... [Mr Hamod] preferred to construct what might very loosely be described as a case based on inference that the extraordinary events that seemed to befall Mr Hamod when in possession of the certificate somehow bespeak its authenticity." His Honour would only have been aware of the events that Mr Hamod said occurred if he had read Mr Hamod's statement. It is also apparent, from his Honour's summary of Mr Hamod's statement relating to events he said occurred during his trip to Europe, at [23]-[45] of the judgment, that his Honour had read the whole statement. Accordingly, the complaint that if he did not read the statement at all, his Honour should have given reasons why he did not do so, can be put to one side. 753In considering the specific comments of which complaint is made, it is reasonable to observe that the various circumstances and events described in Mr Hamod's statement are not everyday occurrences. Indeed, they are highly unusual and to some, may seem improbable. Given the highly unusual nature of some of the events, his Honour's description might even be considered by some to be apt. Indeed, Mr Hamod's own legal representative in the Local Court proceedings referred to what happened to Mr Hamod as " an adventure "; the same comment as made by the trial judge that is the subject of ground of appeal 6. 754Whatever description might be given to the events in the 12 months or so prior to Mr Hamod's arrest, his Honour had to determine the relevance of the evidence; against which respondent the evidence was admissible (strictly, this would form part of the relevance enquiry); the restrictions, if any, to be placed on the use of the evidence; whether the evidence was credible; what weight should be given to the evidence; and whether the evidence in Mr Hamod's statement, together with the other evidence in his case, was sufficient to establish Mr Hamod's claims. Evidence might be given full weight, but still be insufficient to establish a cause of action. 755His Honour made rulings on relevance, the basis upon which the evidence was admissible and the purpose for which evidence was admitted. A final form of Mr Hamod's statement of evidence was colour-coded to reflect his Honour's rulings. So far as is related to these grounds of appeal, the rulings were: (1) Green highlighted text was evidence admitted subject to the Usual Communication Limitation, that is: (a) only as evidence of the content of words which were spoken or written by the person identified as the speaker or writer to or in the presence of those identified as being the recipient(s) of the words; and (b) not as evidence of the truth of the spoken or written words (including not as evidence of any earlier communication to which the spoken or written words refer). (2) Yellow highlighted text was evidence that, in the absence of proper evidence, was to be treated merely as descriptive and not qualitative. 756There was no challenge to any of his Honour's evidentiary rulings. Rather, the appeal grounds presently under consideration are framed in terms of a denial of procedural fairness. The complaint was that his Honour formed a view about particular evidence but had not explained why he had formed such view. However, the relevant consideration is not how his Honour described the evidence, but its relevance, weight and sufficiency to establish the particular case. In circumstances where there is no appeal against the evidentiary rulings as to relevance, use or weight, these grounds of appeal miss the point. (I do not include in that comment the three additional matters argued in respect of grounds 6, 8 and 10.)
Consideration of specific statements of which complaint is made 757Nonetheless, given Mr Hamod's insistence that the primary judge erred and his concerns that at first instance he was not accorded procedural fairness, it is appropriate to deal with the specific complaints in the grounds of appeal. The passages in which the impugned phrases appear are contained within a section of the judgment headed, " Miscellaneous ", containing paras [19]-[22]. 758As to ground 1 : the sentence that follows his Honour's comments, at [19], that the evidence read like " a spy thriller or international best selling crime novel ", was followed by the sentence: "The extent to which any part of the statement bears relevantly or even remotely upon any of the disputed issues called up for determination by me is often difficult, and sometimes even impossible, to discern." This statement has not been shown to be incorrect. This ground goes nowhere unless material is identified to which his Honour apparently did not pay regard and which could have led to a different result. That was not done. 759As to ground 2 : the comment in [20] was a general statement as to the relevance of the evidence. Although not entirely clear, I understand his Honour's comment to be directed to the large portion of Mr Hamod's statement of evidence that he had regarded as not being relevant. His Honour's comment, in the circumstances, was not inappropriate. What I have said at the conclusion of the preceding paragraph also applies. 760As to ground 5 : his Honour's reference, in [22], to the " so-called evidence " raises a different issue. His Honour, in [22], was referring to the means by which Mr Hamod sought to prove the authenticity of the Platinum Certificate. There was overwhelming direct evidence in the respondent's case that the Platinum Certificate was not genuine. Mr Hamod, on the other hand, based his case on inference. He said he had undertaken many enquiries to authenticate the Platinum Certificate. Those enquiries included, for example, the following (being extracts from Mr Hamod's statement): "50. In March 1994 Mr. Enini informed me that Alfima Trust completed due diligence on the bullion certificates and that the sellers of the bullion certificates were the Army and secret services of Indonesia and not the Chinese government as alleged by Mr. O'Dowd. ... 52. In March 1994 Mr. Enini informed me that Mr. Walter Allemman the chairman of Alfima Trust validated the 2 bullion certificates direct with the UBS and that the bullion certificates are authentic and valid and Alfima Trust would purchase the bullion certificates and other certificates on offer for sale." This evidence in paras (50) and (52) was admitted subject to the Usual Communication Limitation (see above at [755(1)]). 761Other evidence upon which Mr Hamod's inferential case was built can be found in the following two paragraphs of his witness statement: "75. In April 1994 I also introduced Mr. Bogdan Cvahte the chairman of Bogdan AG to Mr. O'Dowd. Mr. Cvahte informed Mr. O'Dowd and me that Bogdan AG was a buyer of bullion certificates for Credit Swiss . 76. Mr. Cvahte introduced me to Dr. Hagan and Dr. Fryer attorneys engaged by Credit Swiss to arrange agreements/contracts for the purchase of the bullion certificates . I informed Mr. Cvahte and Dr. Hagan of the threats from Alfima Trust to block the sale of the bullion certificates to other parties. Dr. Hagan informed that he was the Commissionaire for Banks in Switzerland and that he would take necessary legal actions to unblock the sale of the bullion certificates ." The single underlined portions of these two paragraphs were subject to the Usual Communication Limitation. The double underlined portion was highlighted yellow and subject to the ruling that in the absence of proper evidence, the evidence was to be treated merely as descriptive and not qualitative. 762It is apparent that when his Honour's evidentiary rulings are taken into account, Mr Hamod had not adduced any direct evidence of the genuineness of the Platinum Certificate and his inferential case was built on evidence that was subject to evidentiary limitations such that no inferential case was properly made out. In my opinion, that is the sense in which his Honour made reference to the " so-called evidence ". 763As to ground 6 : except for the bias allegation, I have already dealt with the comment subject of ground 6 (see at [753]-[754] above). In my opinion, his Honour's comment was a reference to the extraordinary events recounted by Mr Hamod. It seems to me it was an attempt at a little light-heartedness. His Honour could have let the events speak for themselves, in which case, a person reading the judgment could attach whatever description to them they considered appropriate. As I have indicated, Mr Hamod's counsel in the Local Court described these events as an " adventure ", so his Honour's remark was not an isolated response. The real point, however, is that I do not consider his Honour's remark required any further elaboration by way of reasons. 764As to ground 8 : the next complaint related to his Honour's comments at [43]. Those comments reflected his Honour's perception of the material in paras (281)-(529). Two examples of the disparate topics in this section of Mr Hamod's statement of evidence are as follows. In paras (281)-(302), Mr Hamod gave considerable detail as to his companies' business (that is, the business unrelated to the sale of bullion certificates) and said that during the course of an investigation of this matter, police had seized documents from his home which included documents relating to his other enterprises. Paragraphs (303)-(311) dealt, again in some detail, with his " alleged bankruptcy ", which occurred in August 1994, before Mr Hamod's involvement with the sale of bullion certificates. 765There is other material in the statement of evidence under a heading, " Conspiracy to fraud and injure ": paras (399) ff. Much of that evidence was rejected or withdrawn. However, there is a reference in that section to Paul Keating, the former Prime Minister of Australia, having ordered Mr Hamod's arrest; of a view taken by the Howard government that Mr Keating had acted outside his authority; and of arrangements to meet with journalists (see (411) ff). 766None of this was relevant to the causes of action brought against either respondent. The remark was again not inappropriate and required no further elaboration by way of reasons. 767As to grounds 10 and 11 : complaint was made of his Honour's comments in respect of Magistrate Horler's findings. Magistrate Horler's Reasons for Decision were admitted as evidence of the fact and the content of the Reasons, but not as evidence of the truth of the facts asserted in the Reasons: see Evidence Act , s 91. His Honour recognised that the correctness or otherwise of Magistrate Horler's conclusions and opinions and her decision were not relevant to his determination of the civil proceedings brought by Mr Hamod. 768As Magistrate Horler's reasoning was irrelevant to the determination of Mr Hamod's civil claims, his Honour's comments about it were irrelevant. It is not unusual for a judge to make a comment about a related case, indicating either agreement or disagreement with the related decision. An irrelevant remark or a comment of the type I have indicated by a trial judge does not amount, without more, to appealable error.
Additional complaints: bias (ground 6); erroneous finding (ground 8) and irrelevant consideration (ground 10) 769I have dealt in section (4) of these reasons with the principles governing the ground of apprehended bias. I have also elaborated on his Honour's comment that the events that befell Mr Hamod were, in effect, an " adventure ". As I have said, his Honour could have let the events speak for themselves. Had he done so, I consider that the reasonable layperson, having heard all of the evidence, might have used the same or some similar expression. The reasonable layperson might also have considered the events improbable. For similar reasons to my reasons for considering that no elaboration of his comment was required, I do not think that the reasonable person might have reasonably apprehended that his Honour might not bring an impartial mind to his decision-making. It follows, in my opinion, that the comment did not amount to a case of apprehended bias. 770Mr Hamod complains additionally in ground 8 that his Honour's comment, that " on one view " the events " recounted were a rambling series of apparently but not obviously related reminiscences ", was erroneous. No additional submission was directed to this part of the ground of appeal. In any event, a comment as qualified as that in the context in which it was made is hardly a candidate for a finding that the comment was erroneous. 771That leaves the additional complaint in respect of ground 10, in which Mr Hamod alleged his Honour took into account an irrelevant consideration. The matter raised in ground 10 was his Honour's comment in relation to Magistrate Horler's findings in acquitting Mr Hamod of the s 178BB charge. Mr Hamod's submissions recognised that his Honour, although commenting on Magistrate Horler's findings, also expressly stated that her opinions and decision were beside the point. In my opinion, his Honour was doing no more than expressing surprise at the result, given what he considered was the overwhelming nature of the evidence. There is nothing in his Honour's reasons that indicated that he used his opinion as to Magistrate Horler's findings to reach his own findings on the evidence which, as I have indicated, overwhelmingly required the dismissal of Mr Hamod's claims.
Conclusion on natural justice issues 772In my opinion, grounds 1, 2, 5, 6, 8, 10 and 11 should be rejected.
Section (13): Challenges to findings of fact 773In his written submissions, under the heading " Part B - Challenges to Finding of Fact ", Mr Hamod set out 10 supposed facts that he challenged. This part of the submissions was in purported compliance with UCPR, r 51.36(2). That rule provides: "51.36 Content of written submissions ... (2) Submissions raising substantial challenges to findings of fact must include a statement in narrative form (not exceeding 20 pages) setting out: (a) the findings challenged, and (b) the findings contended for and the reasons why the Court should substitute those findings, and (c) supporting references to the transcript and other evidence ..." 774UCPR, r 51.36(2) requires the separate identification in the written submissions of substantial challenges made to primary facts found by the trial judge. It is not directed to conclusions drawn by the trial judge from primary facts; or to challenges based upon an argument that there was no evidence to support a conclusion; or to challenges made on the basis that the trial judge applied a wrong legal test. 775Unfortunately, the author of the submissions has misunderstood the rule. For the most part, the purported challenges raised in Part B of the written submissions made substantive challenges to the trial judge's reasons, not to his primary fact-finding. 776Dealing with each of the challenges in turn: (1) "... arrest based upon sound material and for the purposes for which the power to arrest exists " see judgment at [89]. This is a conclusion, not a challenge to a primary fact. The argument raised in support of the purported factual challenge was based upon the existence of the COPS entry following Mr Hamod's attendance at Nowra police station in late 1994. This has already been dealt with: see [538], [548]. (2) " The reasons for the arrest were ... adequately and appropriately communicated to Mr Hamod " : see judgment at [90]. This involves a substantive challenge to the trial judge's reasons and, in any event, has been dealt with at [529], [530], [557]-[563] above. (3) "... the contention that Mr Hamod was never informed of the subject matter of the charges relies upon a finding that he was not informed of the subject matter of the charges at any time whilst he was at court on 21 January 1995 ": see judgment at [93]. Mr Hamod submitted that the trial judge applied the wrong test, as a person has to be informed of the crime for which the person is placed under arrest, with specificity, at the time of arrest. This is a substantive challenge to the validity of the arrest. In any event, it misunderstands his Honour's reasons. In this sentence, his Honour was referring to an argument advanced by Mr Hamod and the basis upon which that argument was advanced. Mr Hamod made no challenge, either in his substantive appeal, or in this part of his submissions, to the test applied by his Honour in these paragraphs. It can only be said that this particular challenge, wrongly placed in Part B of the submissions, is a distraction and does not need to be dealt with further. (4) " ... there is no doubt that the person who effectively set the instant criminal proceedings in motion was Det Day and that it is he who must accept the form of responsibility or accountability imposed by the tort ": see judgment at [99]. It is arguable that this constituted a challenge to his Honour's factual finding that the prosecutor, for the purposes of his claim for malicious prosecution, was Detective Senior Constable Day. The facts that Mr Hamod contended should have been found are contained in the fifth challenge, namely, that there were other persons who were prosecutors for the purposes of the tort. Mr Hamod's argument under the present challenge is cast as a substantive challenge to his Honour's reasons. If there were other persons who should have been characterised as " prosecutors ", then an error that there had been no consideration of those persons' states of mind for the purposes of determining malice, would have been available as a substantive challenge. The problem for Mr Hamod, however, is that his Honour stated, at [99], that the proceedings were conducted throughout on the basis that Detective Senior Constable Day was the relevant prosecutor. This was not challenged by Mr Hamod either in the substantive challenge to his Honour's rejection of the malicious prosecution claim, or in Part B of the submissions. (5) The fifth challenge was that the primary judge "made no determination as to who and why anyone was a prosecutor or prosecutors and had to make such a determination for the purposes of properly determining the tort". Mr Hamod identified the prosecutors as being Detective Senior Constable Day, Mr Ludowici, Mr Bower and Mr Wall. However, as stated in the preceding paragraph, there was no challenge to his Honour's statement at [99] that the proceedings were conducted on the basis that Detective Senior Constable Day was the prosecutor. (6) The sixth challenge was directed to the Buy/Sell Agreement. Mr Hamod contended that the Buy/Sell Agreement was " conspicuously inadequate for the transaction that was anticipated and thus ought to have led to a finding that the prosecutor/prosecutors had an absence of reasonable and probable cause to prosecute as it was a document that could never have been used either to attempt or effect the sale ". This particular challenge is not a challenge to a finding of fact. To the extent that this challenge was part of Mr Hamod's claim that the meeting on 20 January 1995 was not for the purpose of a sale, this has been dealt with at [475]-[498], [550]-[552]. (7) " ... the certificate is not genuine ": see judgment at [148]. Although this is a conclusion from other evidence, it is a finding of fact and would appropriately have fallen within Part B. The appellant contended that this finding did not have to be made or, alternatively, was contrary to his evidence as to the steps he had taken to authenticate the Platinum Certificate. This issue was raised under grounds 3, 4, 7, 14 and 20 and has been dealt with in connection with those grounds. (8) " Det Day was armed with information that the certificate was bogus. He was armed with information that Mr Hamod was touting it as the genuine article ": see judgment at [159]. Mr Hamod challenged this finding on the basis that it was not open to his Honour on the evidence. He relied upon the assertions in his Record of Interview, the contents of the Buy/Sell agreement, the transcript of 20 January 1985 and his own repeated assertions that whilst he had authenticated the Platinum Certificate, it was for the buyer to make enquiries. This has been fully dealt with at various places in these reasons: see, in particular, sections (6) and (7). (9) The ninth challenge is stated in the following terms: " No evidence of malice - Injurious falsehood ". Mr Hamod contended that the evidence of malice was the press clipping of 22 January 1995 in which police officers had made statements outside the court using colourful and descriptive language. This is a substantive challenge and ought not to have been raised in Part B of the submissions. In any event, the reliance upon the newspaper publications has been fully dealt with at [666] ff. (10) " The events that occurred on 20 January 1995 were clearly the result of a planned police operation in cooperation with representatives of [UBS]": see judgment at [190]. Mr Hamod did not suggest that a different factual finding should be made. Rather, he contended that his Honour should have drawn inferences that UBS had entered into an arrangement, agreement, or understanding with UBS AG deliberately to injure Mr Hamod by asserting that the Platinum Certificate was false. These reasons deal in considerable detail with the evidence that the Platinum Certificate was false. There is no doubt on the evidence that UBS and UBS AG were concerned not to have the false Platinum Certificate circulating in the marketplace. That is quite different from Mr Hamod's assertion that UBS and UBS AG were deliberately intending to injure him. The challenge has no rational basis.
Section (14): The costs issue: Hamod v State of New South Wales (No 13) [2009] NSWSC 756 777In the principal proceedings before Harrison J, each of the respondents sought an order pursuant to the Civil Procedure Act , s 98(4)(c) for the payment of their costs by way of a specified gross sum. 778Harrison J, in Hamod v State of New South Wales (No 13) [2009] NSWSC 756 at [36], made the following costs orders: "1. I order the plaintiffs to pay the first defendants' costs of the proceedings, which I specify as a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 in the amount of $1,475,765. 2. I order the plaintiffs to pay the second defendants' costs of the proceedings, which I specify as a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 in the amount of $1,614,000." Only Mr Hamod appealed from these orders. Hamock Investments was not an appellant and the respondents did not suggest that Hamock Investments was a necessary appellant on the costs issue. 779The court's power to order costs is governed, relevantly, by the Civil Procedure Act , s 98(4) which provides: "(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. ... (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: ... (c) a specified gross sum instead of assessed costs ..."
Mr Hamod and Hamock Investments Pty Ltd 780In the costs argument in the proceedings before Harrison J, Mr Hamod and Hamock Investments recognised that the State and UBS were entitled to a " usual " costs order, in the sense that as they were successful in the proceedings, they were entitled to costs on the basis that costs followed the event: see Uniform Civil Procedure Rules 2005 (UCPR), r 42.1. However, Mr Hamod and Hamock Investments argued that they were entitled to challenge the quantum of the costs and disbursements claimed by the State and UBS and, accordingly, were entitled to have the State and UBS' costs assessed. They also contended that they were entitled to have costs orders that had been made in their favour brought to account and set off against the respondent's assessed costs (at judgment [6]). 781Mr Hamod and Hamock Investments contended that they were the beneficiaries of at least six separate costs orders (at judgment [7]). Three of these had been assessed in the sum of approximately $272,000. That assessment was the subject of appeal, but Mr Hamod was not in a position to provide an accurate assessment of the costs and disbursements of the other three costs orders. However, he contended that such costs would not be trivial or insignificant (at judgment [8]-[9]). 782Mr Hamod and Hamock Investments submitted that the costs calculated by the State and UBS by way of estimates of their likely costs entitlements following assessment were: "... simply estimates based on raw figures and may not accurately reflect the amount of costs and disbursements allowed by an Assessor following preparation of an itemised bill of costs and subsequent assessment" (at judgment [10]) 783Mr Hamod and Hamock Investments further submitted that significant costs were incurred by the State and UBS as a result of delays for which the State and UBS were alone responsible, so that: "... a significant amount of the costs claimed by each ... [was] either unreasonably incurred or unreasonable in terms of quantum." Mr Hamod and Hamock Investments did not offer any evidence to support this assertion (at judgment [10]).
The State 784The State presented a large volume of evidentiary material to support its submissions on costs. It relied upon the affidavits of Stephanie Koch and Donna Caffrey sworn 27 May 2009. There were four exhibits to the former affidavit, which consisted mainly of tax invoices for legal services and itemised bills of costs in relation to the proceedings. The State's submissions contained a summary of what the affidavits and the folders contained (at judgment [12]). 785Ms Koch's affidavit set out matters in support of the State's application for a specified gross sum costs order, including an historical review of the matter, details of the costs and disbursements incurred during specific periods since August 2000 and details of the solicitors and counsel involved and the amounts of the fees billed or charged. She gave details of the bills of costs rendered to the State with a documentary trail cross-referenced to the exhibits to her affidavit. The affidavit contained 66 paragraphs over 14 pages. Mr Hamod and Hamock Investments did not challenge the State's summary, nor did they cross-examine Ms Koch (at judgment [13]). 786Ms Koch stated that the total amount of the State's costs billed to it was $1,594,575, less $87,720, which were the costs incurred by the State on applications upon which Mr Hamod and Hamock Investments ultimately succeeded and $31,090 being the costs incurred by the State in the costs appeal proceedings commenced in the District Court. The total of the resulting costs was thus said to be $1,475,765 (at judgment [14]). The State sought an order for the payment of 80 per cent of that sum. The reduction of 20 per cent was attributed to the " relatively modest fees " charged by the State's solicitors and counsel. The State sought a costs order under the Civil Procedure Act , s 98(4)(c), " in order to avoid the significant expense and delay associated with costs assessment ". It also submitted that, given Mr Hamod's personal circumstances, it would not be unreasonable to assume that such expense (estimated to be in the order of $150,000) could never be recovered (at judgment [15]). 787The affidavit of Ms Caffrey, Acting Manager, Costs Assessment in the Supreme Court, included evidence that the State would be likely to recover 80 per cent of its incurred costs on an assessment. Ms Caffrey offered her expert opinion that the costs of undertaking the assessment process in a matter of this size would be in the order of $150,000 (at judgment [17]). The State submitted that the making of a specified gross sum costs order in all of the circumstances would be in accordance with the overriding purpose expressed in the Civil Procedure Act , s 56 (at judgment [18]).
UBS 788UBS relied upon two affidavits of Patrick Holmes sworn respectively on 4 May 2009 and 5 May 2009 and an affidavit of Paul Nicols sworn on 18 May 2009. There were four exhibits to Mr Holmes' first affidavit containing detailed information. The trial judge, at [20] and [21], described all three affidavits as very " detailed ". There was no challenge to either of Mr Holmes' affidavits or to the tender of the four detailed exhibits to it. Mr Nicols' affidavit included a detailed analysis of the costs and a comparison between the costs of an assessment, were it to occur, and the costs that might be avoided, if the application before Harrison J were to succeed. He stated that the assessment in the normal course of events would be likely to take at least a year at a cost of several hundred thousand dollars (at judgment [21]). 789UBS also submitted that there was little likelihood that any costs incurred in the assessment process would be recovered from Mr Hamod, as he was a man of limited means and had no substantial assets. It also submitted that the proposition that assessed costs would be any more likely to be paid by Mr Hamod and Hamock Investments was doubtful. In that sense, the argument about whether or not to assess the costs or make a specified gross sum costs order would appear to have little significance beyond the theoretical, except to the extent of the possible need to establish an entitlement to costs against which to set off any smaller costs entitlement that the appellants may have had (at judgment [22]). 790Mr Holmes calculated that UBS' claimable costs totalled $2,690,620. This calculation did not include costs or disbursements incurred prior to 31 May 2003 (at judgment [23]). 791UBS sought an order that Mr Hamod pay 60 per cent of its costs, or approximately $1,614,000. This amount was based upon Mr Nicols' evidence that, in cases where a claimant for costs was represented by a large law firm, the most common result of an assessment is that the costs as assessed fall somewhere between 60 per cent and 75 per cent of the actual costs. Mr Hamod and Hamock Investments did not challenge Mr Nichols' analysis (at judgment [24]). 792UBS made additional submissions to the general effect that, by applying for a specified gross sum costs order under s 98(4)(c) and by offering to accept 60 per cent of its actual costs, it was forgoing arguments about its possible entitlements to interest and indemnity costs. It also submitted that Mr Hamod would be better off if a specified gross sum costs order was made than if the matter proceeded to an assessment in the normal way (at (judgment [26]).
Trial judge's reasons 793Harrison J, at [3], referred to the relevant principles informing the exercise of the discretion in s 98 set out by Einstein J in Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [9]. Einstein J stated at [9]: "For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as ' the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation ' (All ER page 265)]; ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16]; iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22]; v. the gross sum 'can only be fixed broadly having regard to the information before the Court': Beach Petroleum at 124; [In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum 'only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates'.] vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120; vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]: 'On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court: Leary v Leary at 265'" 794The appellants did not contest the accuracy of these statements of the relevant principles (at judgment [5]). These principles, summarised by Einstein J, have been referred to with approval in subsequent Supreme Court cases, and were recently cited by this Court in Savage v Australian Unity Funds Management Ltd [ 2011] NSWCA 270 per Young JA at [32]. They are further discussed below. 795In his reasons, Harrison J highlighted the fact that Mr Hamod had no money and no assets within his control and stated, at [27]: "... In that sense the award of costs in favour of [the State and UBS] appears to be no more than a completely theoretical exercise. The same is not true of the costs that might be incurred if the ordinary assessment process were to proceed for the obvious reason that those costs have not yet been incurred and could still actually be saved." 796Harrison J proceeded to explain that the determinative issue was one of " fairness ": "[30] As the plaintiffs' opposition to [the State and UBS'] applications reveals, however, the determinative issue is no more and no less than one of fairness . The plaintiffs should be ordered to pay [the State and UBS'] costs of the proceedings and the plaintiffs do not at this stage contest the inevitability of that outcome. [The State and UBS] are entitled to recover costs from the unsuccessful [appellants] at rates that are either produced by the operation of the costs assessment procedure if it takes place, as the plaintiffs contend, or in an amount that this Court can confidently be satisfied is no greater than the amount that such a process would produce if a specified gross sum costs order is made instead, as [the State and UBS] contend. As the cases emphasise, the touchstone is one of confidence that the approach taken to estimate costs is logical, fair and reasonable . The fairness aspect of the inquiry includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available. In the present case, all of the material derives from [the State and UBS] themselves and none of that material has been challenged or cast in doubt by the plaintiffs except in the most cursory of ways. I have already observed that Ms Koch, Ms Caffrey, Mr Holmes and Mr Nicols have not been challenged upon anything that they have said or done in preparing the evidence upon which [the State and UBS] rely and that the attention to detail exhibited by all of them is most impressive. I have taken this into account in forming a view about whether or not I can confidently rely upon the material that they have presented." (emphasis added) 797Harrison J, at [33]-[35], continued: "[33] ... I am somewhat troubled by the tension between the essential requirement for a judicial decision on the one hand and the need for reasons of efficiency and speed to make some form of 'next best guess' about what the outcome of an assessment might be on the other hand ... [34] However, in my opinion, the material with which I have been provided permits the making of a decision at a level far removed from mere suspicion. The evidence in favour of making specified gross sum costs orders is strong, if not overwhelming, and there is no competing evidence beyond assertion to the contrary. It would be churlish to treat the careful and detailed evidence and opinions of the [the State and UBS'] deponents as unreliable or unhelpful or possibly infected with inaccuracies when the opposite is so clearly the case. There is also the real and tangible, as opposed to the hypothetical or theoretical, prospect that something in the order of a total of $350,000 may be saved by the avoidance of a costs assessment process that would in practical terms (having regard to the plaintiffs' impecuniosity) produce no different result for them, even if it were a less favourable result, but which would by way of important contrast leave [the State and UBS] actually out of pocket for that amount. The overriding purpose again comes to mind. [35] I am satisfied in all of the circumstances that on balance, the contest between depriving the plaintiffs of an opportunity to subject [the State and UBS] to the rigours of the costs assessment process on the one hand, and the avoidance of undue and unnecessary as well as unrecoverable costs on the other hand, favours the making of specified gross sum costs orders in favour of each of the defendants in the terms that they seek. I am satisfied that it is both just and fair to [the appellants] to do so. That is so, among other reasons, because [tthe State and UBS'] costs appear to have been accurately calculated and do not appear to have been inflated or unreasonably incurred, so that no injustice is caused to the plaintiffs. The discounts of one fifth and two fifths respectively, which [the State and UBS] contend should apply to their actual costs, also seem to me to be appropriate and based on reliable evidence, so that no injustice is caused to them either." (emphasis added)
Mr Hamod 798Mr Hamod submitted that his Honour applied the wrong principle in making a gross sum order under the Civil Procedure Act , s 98(4). He contended that his Honour should have made the standard order that costs be paid by the appellant as agreed or assessed, there being inadequate or insufficient grounds to have departed from the usual order. Mr Hamod submitted that his Honour's discretion thereby miscarried. 799In his written submissions on the appeal, Mr Hamod said that the trial judge was critical of his failure to adduce the evidence of a costs assessor's opinion or commentary regarding any of the extensive affidavit materials read by the State and UBS explaining how they came to their assessment of costs. (In fact his Honour was not critical, but did advert to the fact that there was no competing evidence.) Mr Hamod submitted that having regard to his impecuniosity, he would not have been in a position to afford such an opinion; and that obtaining such an opinion from a costs assessor would have taken months, given all the available material. 800Mr Hamod further submitted that the awarding of a lump sum costs order deprived him of a " fundamental right of assessment " to consider the issue of the quantum of costs. He submitted that such an order divested him of his right to consider whether or not " the work " was performed in circumstances that were " just and reasonable to have incurred the costs so charged ". He was not given the opportunity to have the costs assessed at an amount that would permit him to minimise his exposure to a costs order exceeding $3 M in total. 801In addition, Mr Hamod submitted that, although the trial judge gave him the benefit of a discount, it was unclear whether a greater discount would be available to him had he had the benefit of an assessment process. Mr Hamod stated that: "... it was arbitrary and a miscarriage of discretion to have invoked the Section 98 power when the appellant only recently obtained legal representation and a thorough and comprehensive assessment of a file going back to at least 2000 ... could not possibly have been assessed by a competent legal practitioner in the time allotted between the final disposition of the proceedings and the costs argument." 802According to Mr Hamod, the trial judge's discretion miscarried, the lump sum costs procedure was erroneously invoked and an assessment should have been permitted in the circumstances.
The State 803In its written submissions, the State adopted the submissions of UBS on the issue of costs, with the exception of the percentage allocated to the State. The State submitted that the hourly rate of its solicitors and counsel was below commercial rates and accordingly it was entitled to recover a greater percentage of its costs.
UBS 804UBS submitted that the trial judge's discretion under s 98 had not miscarried and that it was appropriate for his Honour to make a specified gross sum costs order given that: "(1) The respondents' costs estimates were detailed and unchallenged. (2) There was no contrary evidence or contrary submissions of any specificity. (3) In the case of UBS, the estimate was conservative. (4) There was a real and tangible prospect that something in the order of $350,000 could be saved by the avoidance of a costs assessment process. (5) [Mr Hamod] was a man of limited means and no substantial assets." 805UBS further submitted that the fact that the gross sum costs order deprived Mr Hamod of an opportunity to have the respondents' costs assessed did not mean that the discretion miscarried. UBS relied on three main arguments to support this submission. First, the deprivation of the opportunity to assess costs must have been contemplated by the legislature in enacting s 98(4)(c). Secondly, the trial judge explicitly took account of the deprivation of this opportunity in his balancing process. Reference was made to [35] of Harrison J's judgment. Thirdly, there was no evidence that on an assessment there would be any significant chance that UBS' costs would be less than the specified gross sum ordered. 806UBS also argued that it did not follow from Mr Hamod's " general impecuniosity " that he had no opportunity to proffer specific evidence about costs or to challenge the respondents' evidence. To support this submission, UBS relied on the following: Mr Hamod apparently could afford a lawyer to represent him on the application as to costs; he had legal representation previously; there was no evidence that when Mr Hamod was without legal representation from time to time it was because of impecuniosity; there was no application on behalf of Mr Hamod for further time to adduce evidence or to make submissions on the costs question, beyond that given by the trial judge.
Mr Hamod's response to the State and UBS 807In response to the submissions of the State and UBS on the costs issue, Mr Hamod submitted that, inconsistently with Idoport Pty Ltd v National Australia Bank Limited per Einstein J, the " fairness parameter " was not satisfied. Mr Hamod stated that the unfairness in his case arose out of the fifth principle recorded by Einstein J, at [9], namely, that the gross sum " can only be fixed having regard to the information before the court ". 808Mr Hamod submitted that, due to his impecuniosity, it was not possible for him to put information before the court similar to the complex costs evidence that the respondents tendered in Idoport. Mr Hamod stated that he did not have the appropriate time or resources to obtain his own opinions regarding the likely assessments of costs in order to be in a position to make informed submissions as to the likely assessment of costs in terms of a potential outcome. 809According to Mr Hamod, due to his impecuniosity, he was effectively shut out of the assessment process and the trial judge speculated as to the utility of undertaking that process at some time in the future. Mr Hamod submitted that this constituted an error of principle: " whether or not the appellant is in impoverished circumstances or not, he still has a right to have costs assessed conferred by statute ". 810Mr Hamod also contended that there was a " clear unfairness in the entire exercise " such that he was unable properly to put submissions to the court based on the quantum of likely costs to be assessed by a costs assessor. Rather, the only submission he effectively was able to make related to the discretion the trial judge should exercise in the circumstances. As Mr Hamod could not marshal expert evidence regarding the likely costs to be recovered, he was likewise unable to put to the court submissions regarding appropriate discounts. 811Mr Hamod drew a distinction between this case and Idoport. In Idoport, the evidence accepted by Einstein J originated from two independent legal costs assessors. This was not the position regarding costs in the application before the trial judge, as part of the evidence on costs was provided by solicitors employed by the State and UBS. 812Mr Hamod reiterated that the costs ordered by the trial judge were " not anywhere near the quantum of costs that were relied upon " by the State and UBS.
Legal principles 813I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]: "The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." 814See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date, " Civil Procedure Act ", at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd ; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J. 815In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J noted that the specified gross sum costs procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable. 816The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act , ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp ); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45]. 817The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission ; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp ; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628. 818The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]). 819The assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673. 820The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary ; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165 ; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743 . This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165.
Conclusion on the costs issue 821Mr Hamod's principal complaint, that he was denied his fundamental right to have the costs of the respondents assessed in a formal costs assessment process, is, with respect to the author of the submissions, misconceived. There is no such fundamental right. The award of costs in proceedings before the Court is governed by the Civil Procedure Act , s 98 and the UCPR, in particular, Pt 42, Div 1. Section 98(4) gives express power to the court to make an order for specified gross sum costs. Having regard to the express power conferred by s 98(4), Mr Hamod's principal submission must be dismissed outright. 822The real question for consideration is whether, in making the gross costs orders, his Honour's discretion miscarried. Mr Hamod contended that the discretion miscarried because he was divested of his right to consider whether the costs incurred were just and reasonable, as he would have been able to do if the costs were formally assessed through the costs assessment process. He said that the costs assessment process would provide him with the opportunity to limit his exposure to a costs order exceeding $3 M. Again, it must be emphasised that the bald assertion that he had a right to an assessment is incorrect in the face of the court's statutory power to make such an order. 823The fact that Mr Hamod would not be able to formally assess the costs was, of course, a consideration to which his Honour was required to have regard. However, there were other considerations in this case. In particular, Mr Hamod appeared before the court as a person of limited means. The likelihood of the State and UBS recovering their costs and, in particular, the costs incurred in the assessment process, must be negligible. That was a factor that his Honour considered to be relevant to the making of the order. 824The State and UBS had adduced detailed evidence of the costs each had incurred. That evidence was contestable, although given the principles that govern the making of an order under s 98(4), the costs would not be challenged to the same extent as may occur on a formal assessment. However, Mr Hamod chose not to contest the evidence. He may not have had the resources to do so, but Mr Hamod's lack of resources was one of the factors that led his Honour to make the order. Mr Hamod was protected by the principles which required his Honour to be satisfied that the costs claimed were fair and reasonable. 825Mr Hamod also challenged the discount his Honour applied to the assessments of the costs that the parties claimed. However, Mr Hamod did not challenge these matters in cross-examination or by the calling of evidence. He could have cross-examined, at the least. In any event, the authorities state that the court's determination of any such discount may involve an impressionistic process. In this case, there was evidence from experienced legal practitioners and a costs assessor of the likely discount as compared to the actual costs incurred. There was no error in his Honour acting on this evidence. 826In my opinion, Mr Hamod's complaints fail to expose any error in his Honour's exercise of his discretion. As I have said, there was detailed evidence before his Honour as to the costs incurred, to the usual " discount " from total costs that usually applied in commercial disputes; and the lower costs the State usually incurs in matters. His Honour had regard to all of those matters, as well as to the relatively significant costs that would have been involved if the matter was to proceed to an assessment. On the evidence, those matters were all relevant considerations and his Honour's determination could not be badged as 'arbitrary', as Mr Hamod contended. 827In my opinion, this ground of appeal should be dismissed.
Conclusion on the appeal 828In my opinion, the appeal should be dismissed. Accordingly, I propose the following orders:
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. Decision last updated: 06 December 2011
Hamod
State of New South Wales and Anor
[1999] SASC 406
[1981] HCA 56
[1940] HCA 41
[2007] WASCA 100
[2001] SASC 131
[2007] VSC 337
[2010] FamCAFC 36
[1996] FCA 1308
(1981) 148 CLR 170
(1999) 93 FCR 1
(1994) 33 NSWLR 680
(1995) 57 FCR 119
(1977) 48 NSWLR 430
(1979) 28 ALR 191
(1990) 19 NSWLR 263
(1998) 195 CLR 337
(1952) 86 CLR 64
(2004) 63 IPR 54
(1999) 84 FCR 438
(1986) 12 FCR 10
(2005) 94 SASR 154
(1990) 22 NSWLR 256
(1984) 3 NSWLR 168
(1990) 19 NSWLR 91
(1989) 89 ALR 275
(1974) 9 SASR 367
(1977) 19 NSWLR 219
(2005) 215 ALR 788
(2003) 58 IPR 445
(1979) 39 FLR 106
(2007) 70 NSWLR 125
(1988) 13 NSWLR 502
(2000) 201 CLR 488
(2000) 205 CLR 337
(1986) 161 CLR 342
(1996) 65 FCR 215
(2005) 223 CLR 1
(1989) 167 CLR 568
(1986) 6 NSWLR 272
(1990) 170 CLR 70
(1995) 86 LGERA 389
(1966) 115 CLR 266
(1992) 174 CLR 268
(1906) 3 CLR 969
(1954) 92 CLR 113
(1940) 64 CLR 130
(2002) 54 NSWLR 738
[2006] HCA 55
[2009] HCA 27
[2000] HCA 63
[1936] HCA 40
[1986] HCA 33
1. Appeal dismissed; 2. The appellant to pay the respondents' costs of the appeal.