Hamod v State of NSW

Supreme Court of NSW|2007-04-05|Before: Mr J, Ms J, Mr P, Harrison J

CITATION : Hamod v State of NSW [2007] NSWSC 425

DECISION : (1) Order that the first defendant give discovery in accordance with the Amended Categories of Documents for Discovery by First Defendant dated 27 March 2007 within 28 days; (2) Costs are reserved.

LEGISLATION CITED : Uniform Civil Procedure Rules - 21.8 The Law of Torts, 9th Ed (1998)

A v New South Wales [2007] HCA 10 CASES CITED : Houda v New South Wales [2005] NSWSC 1053 Mulley v Manifold (1959) 103 CLR 341 Priest v New South Wales [2006] NSWSC 12

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

COUNSEL : Mr R McKeand SC - First Plaintiff Mr J E Maconachie QC with Mr M Hutchings - First Defendant

Mr S Diad, Simon Diab & Associates - First Plaintiff SOLICITORS : Ms J Snell, Senior Solicitor, Crown Solicitor's Office - First Defendant Mr P Holmes, Allens Arthur Robinson - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20147/2003 - ANTHONY HAMOD & ANOR v STATE OF NEW SOUTH WALES & ANOR

JUDGMENT (Discovery) 1 HER HONOUR: By notice of notion filed 11 September 2006, the first plaintiff seeks discovery against the first defendant, the State of New South Wales. The first defendant opposes such an order. 2 On 23 March 2007, the plaintiffs served an amended list of categories for discovery by the first defendant. They are: "(a) All documents produced to or received by New South Wales Police or the New South Wales Director of Public Prosecutions relating in any way to A. the Platinum Certificate that is the subject of these proceedings, or

B. relating to the First Plaintiff, or to UBS Australia, or to UB$ AG in respect of the matters that were the subject of the prosecution of the First Plaintiff (the subject of these proceedings), including documents so produced by or received before, during or after the prosecution: i. From Interpol; ii From Australian Federal Police; iii. Under Mutual Assistance Scheme between Australia and Switzerland; and iv. From Victorian Police.

(b) All documents created by New South Wales Police relating to investigations into the matters that were the subject of the prosecution of the First Plaintiff (the subject of these proceedings), or relating to that prosecution, including documents created subsequent to the prosecution.

(c) All surveillance and transcripts of telephone intercepts produced by New South Wales Police for the purposes of the investigation or prosecution of the First Plaintiff in relation to the Platinum Certificate.

(d) All documents containing records of complaints made by the First Plaintiff to police at Nowra police station in October 1994 and all records of conversations by and action taken by police relating to those complaints including records of statements made by other persons in relation to the complaints." 3 Rule 21.8 of the Uniform Civil Procedure Rules (UCPR) provides that an order for discovery may not be made in common law claims for damages arising out of death or bodily injury to any person unless the Court for special reasons, otherwise orders. 4 The plaintiffs submitted that their claim is not "for damages arising out of…bodily injury". The first defendant submitted that the damages do arise out of bodily injury and even if it does not, there are no special circumstances that warrant the making of an order for discovery. The first plaintiff's claim for damages arises out of malicious prosecution, injurious falsehood, false imprisonment and detinue. The injury to the person that is alleged is a consequential injury flowing from the emotional upset, anxiety and distress caused by the commission of the torts alleged, as was the case in Houda v New South Wales [2005] NSWSC 1053 at [322] - [368]. In my view, the plaintiff's claim is not one which arises entirely out of bodily injury. 5 Even if I am wrong, it is my view that special reasons exist for discovery (see Priest v New South Wales [2006] NSWSC 12). They are that firstly, the first plaintiff's case arises in extraordinary circumstances and falls outside the normal range of personal injury cases; secondly, that primary claim of the first plaintiff is for economic loss occasioned by reason of the intentional acts of the first defendant; thirdly, the very nature of the cause of action malicious prosecution is such that discovery is necessary in the interests of a fair trial. A central element of the cause of action is the absence of reasonable and probable cause. A determination of the presence or absence of reasonable and probable cause is based on the state of knowledge of prosecutors at the time of prosecution; fourthly, such state of knowledge includes information and documentation in the prosecutors possession at the time of prosecution, not merely the brief of evidence provided to the first plaintiff in the Local Court. 6 The test for discovery is well known and set out in Mulley v Manifold (1959) 103 CLR 341 at 345 where Menzies J stated: "I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of inquiry which would, either advance a party's own case or damage that of his adversary". 7 Malicious prosecution is an abuse of proceedings. In the recent High Court decision of A v New South Wales [2007] HCA 10, the Court stated at [1]: "For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause." 8 The High Court went on to reaffirm that the elements of malice and absence of reasonable and probable cause serve different purposes and remain separate elements which a plaintiff must prove in order to establish the tort. Damage is a necessary ingredient of the tort. (Fleming J, The Law of Torts, 9th Ed (1998)). Damages for malicious prosecution must be founded on actual injury and can include injury to reputation, damage to pecuniary interests such as being put to the expense in defending itself against the charge (Fleming 686-687). 9 The plaintiffs say that it is elements (3) and (4) of the tort of malicious prosecution (in A v New South Wales) for which these documents are sought. 10 In relation to element (2), on 3 April 1998, Horler LCM dismissed the charge that the defendant made false and misleading statements to obtain a financial advantage for himself or others. The Magistrate was satisfied not only that Mr Hamod never believed the document was false, but to the contrary, that his belief that it was genuine was reasonably held (Ex A). 11 The first defendant's counsel submitted that when one looks at the pleadings, the documents sought are not relevant to a fact in issue. The 6th Amended Statement of Claim relevantly pleads that PT Galaxy Indonesia Trust (Galaxy) was a corporation operating as a trustee pursuant to the laws of Indonesia. In June 1994, Galaxy was the true owner as the last holder of the Platinum Certificate issued by the Union Bank of Switzerland on or about 27 October 1978 (the Platinum certificate). In November 1994, the first plaintiff entered into an agreement with Galaxy to sell the Platinum certificate for a commission which was to be deducted from the sale. The value of the certificate is apparently $66 billion. The first plaintiff entered into an agreement with the second defendant to negotiate the sale. In September 1994, Galaxy requested the return of the certificate but the plaintiffs refused to do so until they were paid outstanding fees. It is alleged that represents of Galaxy, Messrs O'Dowd and Clarke made a series of threats to the first plaintiff that the certificate would be stolen, or taken with force and that his daughter would be kidnapped. Mr Hamod reported these threats to Detective Superintendent Green and Detective Eastham at Nowra Police Station. 12 At that time, Mr Hamod provided documentary evidence as to the authenticity and validity of the Platinum Certificate, of his right as conferred upon him and on the second plaintiff to hold the said Certificate pursuant to authority granted by PT Galaxy Indonesia Trust and sell it less payment of commissions, costs and disbursements. In addition, the first plaintiff provided the police officers with a statement and documents as to his involvement with PT Galaxy Indonesia Trust, the sale of the Gold Certificates and the Platinum Certificate, together with the agreement for payment of costs, disbursements and commissions from the sale. 13 After receipt of this documentation, Detective Superintendent Green represented to the first plaintiff that officers from the Federal Police would be engaged to locate Messrs O'Dowd and Clarke and to stop threats being made against the first plaintiff and his family. 14 On or about October 1994, Detective Sergeant Eastham represented to the first plaintiff 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 PT Galaxy Indonesia Trust to Interpol. 15 The plaintiff asserts that the Nowra police officers believed that the certificate was genuine. Later, different police officers believed that the certificate was not genuine, and a prosecution was mounted. In order to test the reasonableness of the latter police officer's beliefs of reasonable and probable cause, it is necessary to examine the documents upon which they formed their views. The documents sought in the Amended Categories of Documents for Discovery, in my view, go to matters in issue. I make an order that the first defendant give discovery in accordance with the Amended Categories of Documents for Discovery by First Defendant. Costs are reserved.

(1) Order that the first defendant give discovery in accordance with the Amended Categories of Documents for Discovery by First Defendant dated 27 March 2007 within 28 days.

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.

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