FEDERAL COURT OF AUSTRALIA

Hamod v State of New South Wales [2001] FCA 495

PRACTICE AND PROCEDURE – extension of time for repleading – whether the addition of further respondents should be considered by the Court prior to repleading of the causes of action against the existing respondents in conformity with Rules of Court.

HAMOD & ANOR v STATE OF NEW SOUTH WALES & ANOR

No. 643 of 2000

CONTI J

26 APRIL 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  All Motions before the Court be stood over to 18 May 2001.

2.                  The time to replead a Further Amended Statement of Claim and Amended Application be extended for fourteen days to 11 May 2001.

3.                  Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 28 February 2001, I made the following orders in these proceedings, pursuant to the Respondents’ strike-out applications:

1.                  The Amended Statement of Claim of the Applicants filed herein on 27 October 2000 be struck-out.

2.                  The Applicants to have leave to replead in lieu a Further Amended Statement of Claim, the same to be filed and served within forty-two days from the date hereof.

3.                  The Applicants to have leave to amend the Amended Application, the same to be filed and served within forty-two days from the date hereof.

4.                  The Applicants to have liberty to apply for an extension of time for filing and serving a Further Amended Statement of Claim and a Further Amended Application on three business days’ notice.

5.                  The Second Respondent’s Application for security for costs and the costs of each of the Respondents of the present Applications for Strike-Out of the Amended Statement of Claim and Amended Application be reserved until after service of the Further Amended Statement of Claim.

6.                  Liberty be granted to any party to apply on three days’ notice at any time.

2                     Subsequently the First Applicant Mr Hamod wrote to me and requested that I correct certain alleged errors in my Reasons for Judgment of 28 February 2001, which Reasons extended over forty-four pages. I wrote to him and informed him that I was unable to enter into correspondence with him.

3                     The Applicants did not replead or file a Further Amended Statement of Claim or file an Amended Application within the forty-two days permitted or at all. The Applicants have instead sought an extension of time of eighty-four days to file such amended pleadings, which are proposed to add causes of action against the Commonwealth of Australia and also against an overseas Swiss resident company (“UBS AG”) related corporately to the Second Respondent. The text of the three orders sought by the Applicants present Notice of Motion filed on 9 April 2001 are as follows:

1.                  Further time of eighty-four days be granted for the Applicants to amend and file their proposed Amended Application and Further Amended Statement of Claim.

2.                  Leave for the First Applicant to add the Commonwealth and UBS AG as parties to the proceedings.

3.                  Such further or other orders as the Court considers appropriate.

4                     Due to some misunderstanding, the Notice of Motion now before me was marked by the Court Registry “For Directions Only”. I have difficulty in understanding how that misconception was brought about. Neither the Court nor the Respondents could have entertained any expectation of a directions hearing on the return date. Counsel for the Second Applicant (“Hamock”) was unable to remain in attendance for more than a relatively short period of time, due to other court commitments. Her instructing Solicitor Ms Barber took her place at the Bar Table, along with Mr Hamod who appeared in person.

5                     Mr Hamod presented to the Court an Affidavit sworn by him on 24 April 2001, which purportedly sought first to explain the delay in presenting to the Court the Further Amended Statement of Claim and Amended Application in conformity with my orders of 28 February 2001, and secondly to detail the proposed causes of action against the Commonwealth and UBS AG as intended additional Respondents. The Affidavit comprised 26 pages plus numerous annexures. That part of the Affidavit purporting to explain the delay comprised merely three paragraphs, whilst that part of the Affidavit purporting to evidence the basis for adding the two additional Respondents comprised ninety-four paragraphs. A further paragraph of the Affidavit made serious and unsubstantiated charges against the Solicitors for the Second Respondent (“UBS Aust”), but Mr Hamod retreated from the pursuit of any cause of action against the Solicitors.

6                     I declined to entertain my application to add the Commonwealth and UBS AG as additional Respondents, at least at this stage, for the following reasons in combination:

(i)                  the priority from the Court’s perspective is to determine whether the Applicants are capable of presenting a viable pleading against the existing Respondents pursuant to the leave granted, that is to say, a pleading which complies with the Rules of Court and discloses a viable cause or causes of action; I do not think that the Applicants have taken sufficiently seriously the reasons for disallowance of the existing pleadings appearing in my previous judgment;

(ii)                whilst I accept as genuine the medical certificates attached to Mr Hamod’s Affidavit, I do not ignore the reality that he has nevertheless devoted considerable time and effort to divining a basis for additional causes of action against the Commonwealth and UBS AG, and thus in assembling this new lengthy affidavit at the expense of attending to compliance with my Orders of 28 February 2001; if I understand Mr Hamod’s new affidavit correctly, he has been devoting most of his time and attention to these supposed causes of action against the Commonwealth and UBS AG, which appear thus far to be outside the jurisdiction of this Court to entertain, to the exclusion of drafting the new pleadings the subject of those Orders.

7                     Ms Keys informed the Court that preparation of the proposed new statement of claim against the State and UBS Aust is underway, and arrangements are being made to retain Senior Counsel to assist in that regard. In those circumstances, and despite the Respondents’ justifiable opposition, I have decided to allow a further period of fourteen days for compliance with my Order numbered 2 made on 28 February 2001. I stressed to Mr Hamod and Ms Barber that they pay close regard to my Reasons for Judgment of 28 February 2001, and in particular examine closely whether in Mr Hamod’s ultimate best interests, the claims advanced by Hamock should be abandoned entirely or else drastically as well as realistically curtailed in scope and whether the only prospective causes of actions conceivably open to Mr Hamod may conceivably be confined at best to imprisonment, conspiracy and trespass. There does not yet appear to be any appreciation on the part of the Applicants of what will be necessarily involved from the justifiable perspective of the Respondents in establishing in advance of the allocation of any final hearing date for the proceedings the viability of claims for economic loss.

Associate:

Dated:              2 May 2001