FEDERAL COURT OF AUSTRALIA

Hamod v State of New South Wales [2001] FCA 1851

ANTHONY HAMOD & ANOR v STATE OF NEW SOUTH WALES & ANOR

N 643 OF 2000

EMMETT J

21 SEPTEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

The application for abridging time for service be refused.

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

REASONS FOR JUDGMENT

1                     I have an application before me, brought ex parte, for leave to abridge the time for service of a notice of motion seeking a number of orders in respect of proceedings under the management of Conti J. In the time available to me it has not been possible for me to consider the detail of the allegations made in the pleadings. In the proceeding, the applicants are Anthony Hamod and Hamock Investments Pty Limited. The respondents are the State of New South Wales and UBS Australia Limited.

2                     Mr Hamod, in assertions from the bar table, referred to allegations dating from late 1994 concerning alleged attempts at bribery, wrongful seizure of property and papers, imprisonment, alleged malicious prosecution and other matters. This proceeding was commenced on 19 June 2000. The first return day for the applications was 27 July 2000. On 26 July 2000 the second respondent notified Mr Hamod of its intention to file a notice of motion seeking leave to strike out his statement of claim.

3                     The second respondent filed a notice of motion seeking summary dismissal on 27 July 2001. That motion was heard on 2 August 2000, when Gyles J dismissed the notice of motion. On 31 August 2000 the first respondent filed a notice of motion to strike out the statement of claim. On 5 September 2000 Gyles J ordered that there are to be no further notices of motion without leave. It is alleged that on 15 September 2000 the second respondent wrote to Gyles J making allegations about the applicants, but no copy of the letters was furnished to the applicants.

4                     On 6 November 2000 a further amended notice of motion was filed by the second respondent seeking orders that the current pleading be struck out and for security for costs. On 30 November 2000 a second further amended notice of motion was filed by the second respondent seeking orders that:

1.      The proceedings be stayed until such time as there was common representation of the first and second applicants.

2.      Amendments made to the statement of claim by the amended statement of claim be disallowed.

3.      The amended statement of claim be struck out.

4.      Alternatively, that the proceedings against the second respondent be dismissed.

5.      Alternatively, that the second applicant provide security in respect of the second respondent’s costs by way of bank guarantee in an amount the Court considered appropriate.

5                     It appears that there was argument on 30 November 2000 before Conti J of the matters raised in that second further amended notice of motion. It also appears that the application by the first respondent that the pleading be struck out was also heard at the same time.

6                     Directions were given on 30 November 2000 for further written submissions to be filed and his Honour otherwise reserved his decision on the notices of motion. In early December 2000, the first respondent became aware of the second respondent's letter of 15 September 2000 and was furnished with a copy of it in late January 2001. On 28 February 2001 Conti J made the following orders:

1. The amended statement of claim filed on 27 October 2000 be struck out.

2. The applicants have leave to replead a further amended statement of claim, the same to be filed and served within forty-two days from that date.

3. The applicants have leave to amend the amended application, the same to be filed and served within 42 days from that date.

4. The applicants 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 the service of the further amended statement of claim.

7                     On 26 April 2001, Conti J made orders extending the operation of Order 2 of 28 February 2001 to 10 May 2001. On 11 May 2001 an amended statement of claim was filed. On 18 May 2001 the second respondent filed a notice of motion to strike out the amended statement of claim, returnable on 7 September 2001.

8                     On 11 September 2001 the first applicant filed a notice of motion returnable today, seeking orders that:

1.      Leave be granted for the fist applicant to represent the second applicant.

2.      Leave and time be granted to the applicants to amend and file a further amended application and statement of claim.

3.      Leave and time of eight weeks be granted to the applicants to obtain legal advice proceeding with the matter in the Federal Court or to transfer the matter to the Supreme Court of New South Wales.

9                     As far as I have been able to determine, when the matter came before Conti J today, his Honour indicated to the parties that his Honour would deal with the matters reserved in Order 5 of 28 February 2001 on Monday 24 September 2001. Those matters were the second respondent's application for security for costs and the question of the costs of the respondents of the motions to strike out. His Honour did not deal with the motion of 11 September 2001 listed for directions today. His Honour indicated the dates on which he would be able to deal with the motion that had been made returnable on 7 September 2001.

10                  As I understand his application, Mr Hamod now seeks leave to file a notice of motion seeking leave to appeal from the directions given by Conti J this morning concerning the hearing on 24 September 2001 and for leave to appeal in respect of the failure of Conti J to deal with the motion returnable for directions today. The notice of motion proposed also seeks orders setting aside applications of the respondents for security for costs and for orders that Conti J step aside from hearing any further notices of motion in the matter. Counsel for the second respondent has been present in Court as a result of informal notification by a staff member of the Court’s Registry.

11                  The evidence in support of the application for abridgment of time for service is in the form of a handwritten affidavit, which I have some difficulty in comprehending. It does not appear to contain any grounds for indicating that Conti J erred as a matter of principle in directing that the matters reserved on 28 February 2001 be dealt with on 24 September 2001. The complaint is that Mr Hamod does not know what submissions are going to be made. However I would draw the inference that, when the matter was heard on 30 November 2000, the parties had ample opportunity to make such submissions as they wished to make in relation to the issues raised by the notice of motion, including both the question of security for costs and the question of the costs of the motions.

12                  As I understand it, all that Conti J has indicated is that he will now deal with the matters that he had not dealt with in relation to the hearing on 30 November. On one view, there would be no need for the parties to be given any further right of hearing. They have had an opportunity to make whatever submissions they wanted to make on those matters. His Honour, as a matter of convenience, appears to have considered that it was appropriate not to decide the question of security for costs and the question of costs until after the amended statement of claim that he gave leave to file had been filed.

13                  I am not persuaded that there is any error on the part of his Honour, or that his Honour’s discretion in relation to the management of this case has miscarried in any way. Accordingly, in my view, no case has been made out for abridging the time for service of the proposed notice of motion.

Associate:

Dated: 20 September 2001