FEDERAL COURT OF AUSTRALIA

Hamod v State of New South Wales [2002] FCA 1348

PRACTICE AND PROCEDURE – motion for leave to file fourth amended statement of claim – whether whole or part thereof disallowable as not disclosing viable causes of action – proposed causes of action based upon ss 45D, 45DA, 45DB, 52 and 53 of Trade Practices Act disallowed – causes of action at common law substantially allowed – requirement for future common representation foreshadowed.

Trade Practices Act 1974 (Cth) ss 2B, 45D, 45DA, 45DB, 52, 53

Fair Trading Act 1987 (NSW) s 42

Australian Securities and Investments Commission Act 1989 (Cth)

Banking Act 1959 (Cth)

Judiciary Act 1903 (Cth)

Limitation Act 1969 (NSW)

Acts Interpretation Act 1901 (Cth) s 22(1)(a)

Federal Court of Australia Act 1976 (Cth) s 59(2B)

Federal Court Rules O 4 rr 1, 2 and 4, O 6 r 7, O 9 r 1, O 11 r 2, O 13 r 2

Trindade et al The Law of Torts in Australia 3^rd ed. 1998

Fleming The Law of Torts 9^th ed. 1998

Hamod v State of New South Wales [2000] FCA 1100 cited

Hamod v State of New South Wales [2001] FCA 157 cited

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

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

Hamod v State of New South Wales [2002] FCA 424 cited

Dart v Norwich Union Life Australia Ltd [2002] FCA 168 cited

Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 cited

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 cited

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 cited

Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 cited

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 185 ALR 280 cited

Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1998) 21 ATPR 41-669 cited

Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 cited

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 referred to

ANTHONY HAMOD & HAMOCK INVESTMENTS PTY LIMITED v THE STATE OF NEW SOUTH WALES & UBS AUSTRALIA LIMITED

N 643 of 2000

CONTI J

31 OCTOBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The applicants have leave to file in Court the fourth amended statement of claim the subject of the notice of motion of the applicants dated 8 April 2002 and filed in the Federal Court Registry on that day, conditional upon the excision therefrom of the causes of action purportedly based upon the Trade Practices Act 1974 (Cth) and comprising segments 23 to 27 and 29 of that statement of claim and further upon the excision therefrom of the cause of action at common law comprising segment 28 thereof.

2.         The applicants and the respondents respectively bear their own costs of and incidental to the application.

3.         Pleadings in relation to the abovementioned fourth amended statement of claim restructured in accordance with order 1 to proceed in accordance with the Federal Court Rules.

4.         Liberty to the respondents to apply on seven days’ notice for orders that the proceedings upon the fourth amended statement of claim as so restructured be stayed unless and until the applicants retain common legal representation for the purpose of the future conduct of the proceedings.

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

REASONS FOR JUDGMENT

History of the proceedings

1                     These proceedings were commenced by application and statement of claim filed on 19 June 2000 (“SC No 1”). The respective parties, and the abbreviations of the names thereof which I will adopt, are as follows:

First applicant : “Mr Hamod”

Second applicant : “Hamock”

First respondent : “The State”

Second respondent : “UBS”.

2                     On 2 August 2000, certain interlocutory applications in the proceedings came on for hearing before Gyles J, and his Honour made orders to the following effect:

(i)         refusing leave to Mr Hamod to represent Hamock;

(ii)        dismissing the application of UBS for strike out or general stay of the proceedings; and

(iii)       staying the proceedings brought by Hamock as incompetent pending further order, by reason of the absence of leave for the same to be brought by a legal representative for that corporation.

3                     In the course of his reasons for judgment (Hamod v State of New South Wales [2000] FCA 1110), Gyles J observed as follows at [8]:

“I have not as yet closely examined or analysed the application or the statement of claim. Suffice to say that they are prolix, and that a number of causes of action are referred to. The circumstances under which they are pleaded can at least be recognised as being somewhat novel. The claims for damages are very substantial and again not in a conventional form.”

4                     An amended statement of claim (“SC No 2”) was filed on behalf of the applicants bearing date 27 October 2000. Mr Hamod largely ignored the foregoing observations of Gyles J, because SC No 2 substantially multiplied both in size and causes of action what appeared in SC No 1, such as to occupy some 500 pages in length. Substantial claims were made by SC No 2 for billions of dollars by way of unliquidated damages against both the State and UBS for economic loss, and for personal injury both physical and mental, and claims were also made for the return of numerous items of personalty. The jurisdiction of the Court was sought to be established by SC No 2 upon the footing of statutory causes of action for contravention of ss 45D, 45DB and 52 of the Trade Practices Act 1974 (Cth) (“the TP Act”) and of s 42 of the Fair Trading Act 1987 (NSW) (the “FT Act”), and in addition, causes of action for damages at common law for conspiracy, and trespass to person, to premises and to goods were pleaded. Exemplary damages were additionally claimed against both the State and UBS.

5                On 28 February 2001, I ordered that SC No 2 be struck out, and that leave to re-plead within 42 days be granted to the applicants (Hamod v State of New South Wales [2001] FCA 157). In relation to that strike-out process, Mr Hamod appeared for himself, and Ms Keys of Counsel, instructed by M R Barber & Associates, appeared for Hamock. At the conclusion of the lengthy reasons for judgment, I indicated that I would entertain an application to transfer or cross-vest the proceedings to the Supreme Court of New South Wales, in the event that a satisfactory re-pleaded statement of claim was presented, which omitted the causes of action framed under the auspices of federal legislation which I had found not to be justiciable.

6                On 9 April 2001, a notice of motion was filed by Mr Hamod for leave to amend and to file a so-called “[a]n Amended application and Fresh Statement of Claim” on behalf of both applicants against both the State and UBS, being an application not ultimately pursued. The delay in so doing was explained by affidavit. I granted an extension of time until 11 May 2001 to file a further amended statement of claim and amended application (Hamod v State of New South Wales [2001] FCA 495), and in so doing, I made the following observation to Mr Hamod and Ms Keys:

“…that they… 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 be confined at best to false 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… in establishing in advance of the allocation of any final hearing date for the proceedings [involving] the viability of claims for economic loss.”

7                     On 11 May 2001 a so-called further amended statement of claim and amended application were filed in the proceedings, again containing causes of action framed against both the State and UBS. The pleading of that statement of claim occupied 79 pages, very substantially less than SC No 2. On 18 May 2001, UBS filed a notice of motion to strike out that statement of claim, which motion was made returnable on 7 September 2001. That motion became overtaken by a number of interlocutory events referred to in [9] below, and did not proceed to a hearing. Instead, on 6 February 2002, Mr Hamod and Hamock propounded against the State and UBS what was again described as a further amended statement of claim (which I will refer to as “SC No 3”), which was 94 pages in length, and another amended application. The brief affidavit of Mr Hamod in support of the notice of motion to file SC No 3 asserted that during February 2002, he had received “information of concealed evidence and facts”. At least by the time of filing of this notice of motion, Barber & Associates had apparently ceased to be retained by Hamock, since the notice of motion of 8 April 2002 was purportedly filed by Mr Hamod on behalf of both applicants.

8                     On 21 February 2002, there took place a full day of submissions by the parties upon the viability of SC No 3, being submissions supplementary to written submissions of the parties. By then, Mr Wakeling, solicitor, had been engaged as legal representative for Hamock, but Mr Hamod continued to appear in person. I reserved judgment at the conclusion of the hearing on that day.

9                     It is convenient to interpolate at this point to record that Mr Hamod and Hamock had caused to be commenced a number of proceedings before other judges of this Court, designed to review my judgment relating to the strike-out of SC No 2, and also various subsequent interlocutory judgments which I had pronounced. After informing me that he would cease to continue to appear and conduct any aspect of the subject proceedings before me as the presiding judge, and would appeal all of my previous decisions and directions, Mr Hamod abruptly withdrew from an interlocutory hearing on 7 September 2001 shortly after its commencement, and appeared thereafter, apparently for both himself and Hamock, before Emmett J on 21 September 2001, without however achieving any success (Hamod v State of New South Wales [2001] FCA 1851). Thereafter two unsuccessful interlocutory hearings were undertaken by Mr Hamod and Hamock on 31 October 2001 before Sackville J, and on 7 December 2001 before Katz J, with apparently similar results adverse to himself and Hamock. Ultimately on 22 February 2002, a Full Court comprising Gray, Carr and Goldberg JJ dismissed what it described as “purportedly” an appeal of Mr Hamod and Hamock, and also a notice of motion of 15 February 2002 brought by Mr Hamod and Hamock, with consequential adverse orders as to costs (Hamod v State of New South Wales [2002] FCA 424).

10                  Within 6 weeks after the hearing on 21 February 2002, Mr Hamod applied to the Court for leave to file a so-called fourth amended statement of claim (“SC No 4”) on behalf of himself and Hamock as applicants, accompanied by two amended applications, one such application by himself and a separate application by UBS, but both filed in the same proceedings N 643 of 2000. On 2 May 2002, I heard further argument on behalf of the parties, upon the basis that if permitted to be filed, SC No 4 would in effect supersede SC No 3. Mr Hamod again appeared in person and Mr Wakeling appeared for Hamock, though Mr Hamod undertook the dominant role in making submissions on behalf of the applicants. After a short adjournment, the purpose of which was to enable the applicants to elect as to reliance on SC No 3 or SC No 4, Mr Hamod and Mr Wakeling indicated that reliance would be placed only on SC No 4 to the exclusion of SC No 3. What therefore remains for my consideration is whether I grant leave for filing in Court as amended pleadings SC No 4 and the accompanying applications, and if so on what terms.

Some general observations on the evolution of the proceedings to date

11                  In the course of my lengthy reasons for judgment of 28 February 2001, I gave a number of warnings to the applicants as to the implications of pleading causes of action otherwise than in accordance with the rules of court and established principles of practice. I pointed out that the authors of SC No 2 had failed to undertake the task of determining the essential elements of each cause of action sought to be invoked, and of thereafter distilling the facts and circumstances material to establishing those elements. I further observed that SC No 2 was quintessentially a prolix pleading of literally a massive amount of factual material, mainly of a narrative nature, rather than a pleading confined to only those facts necessary to establish the elements or components of the causes of action purportedly pleaded. Those warnings and observations appear for instance in [4], [8], [35], [36], [40], [53] and [56] of those reasons for judgment of 28 February 2001.

12                  I have subsequently repeated on several occasions observations to similar effect, inclusive of warnings as to the consequences of failure to present pleadings in conformity with applicable rules of court and of established professional practice. On 21 February 2002, after repeating my previous indications to Mr Hamod that he would do well to consider the course of confining all causes of actions to tortious liability, and cross-vesting the further pursuit of the proceedings based on those causes of action alone to the Supreme Court, I pointed out to him that the scope and scale of the massive damages claims being advanced on behalf of himself and Hamock, in all probability involved more than any specified sum of money ever claimed in any Court in Australia, and that the final disposition of those claims might never eventuate because of the virtually insurmountable task of bringing proceedings of that magnitude and complexity to a state of readiness for trial, and of the documentary evidence which would need to be assembled and proved, and the open-ended interlocutory proceedings likely to ensue. A warning to similar effect appears as early as [4] in my reasons for judgment in relation to SC No 2. The subsequent engagement of Mr Wakeling as legal representative for Hamock was an encouraging signal of change of approach, as was Mr Hamod’s indication in open court of having received assistance from a barrister in the preparation of SC No 4, but the quantum and complexity of the claims maintained by SC No 4, particularly in the light of the accompanying amended applications, continue to present a significant obstacle to the proceedings becoming ready for final hearing in the foreseeable future.

13                  On the most recent occasion (2 May 2002) when the proceedings were before the Court, I stated that there would arrive the time when no further leave to amend could be entertained, and that Mr Hamod had been ignoring what I had been saying in relation to the prolix nature of the successive pleadings being filed. By this time there had been filed the application for leave to file SC No 4 and the accompanying applications.

14                  Despite the appearances of Mr Wakeling on behalf of Hamock, Mr Hamod has continued to appear for himself in person, and virtually alone to address the Court in relation to the amended statement of claim and accompanying applications. It is readily apparent, based upon my experience to date, that despite the appearance of Mr Wakeling, and the assistance he has given to the Court, understandably of a limited nature in the light of his only relatively recent exposure to the complexity of the proceedings, Mr Hamod is plainly dictating and directing the course and manner of prosecution of the present proceedings. I recognise that Mr Hamod harbours a strong sense of hurt and injustice at the hands of the respondents, as I have pointed out at least implicitly for instance in [33-34] of my reasons for judgment of 28 February 2001. I would nevertheless draw attention to what was stated by a Full Court in Dart v Norwich Union Life Australia Ltd [2002] FCA 168:

“The limits to the assistance a court should provide an unrepresented litigant in pleading his or her claim fall far short of the actual obligation the appellants seek to impose on a Court: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 AT 445-447; see AIJA, Litigants in Person Management Plans: Issues for Courts and Tribunals, 5-8 (2001). Successive judges have pointed out to them what are the deficiencies of their pleading. In the first strike out application the primary judge identified the arena in which an arguable case might lie and by so doing sought to diminish the disadvantage of the Darts as unrepresented litigants. Such guidance and assistance as has been proffered, has been ignored.”

My experience with Mr Hamod has been the same.

The amended applications relating to the so-called fourth amended statement of claim of 8 April 2002 (“SC No 4”)

15                  An insight into the formidable and complex task of any examination of SC No 4 may be initially obtained from the amended applications proposed to accompany the same. Since there is only one proceeding, the filing of two amended applications, one by Mr Hamod and the other by Hamock, is misconceived. To further aggravate the prolixity of the course of pleadings comprising and associated with SC No 4, I should record that although SC No 4 is 162 pages in length, the relief specified in each application extends in both cases over 26 pages.

16                  Mr Hamod’s current amended application for relief accompanying SC No 4, and Hamock’s contemporaneous amended application, refer by way of preface to causes of action based upon the following legislation:

(i)         Trade Practices Act 1974 (Cth) (“TP Act”)

(ii)        Fair Trading Act 1987 (NSW) (only in Mr Hamod’s amended application)

(iii)       Australian Securities and Investments Commission Act 1989 (Cth) (“ASIC Act”)

(iv)       Banking Act 1959 (Cth)

(v)        Judiciary Act 1903 (Cth)

(vi)       Limitation Act 1969 (NSW).

The function of an application under the Federal Court Rules is not that of a pleading of a cause of action, but only a means of commencing proceedings (O 4 r 1) and of specifying relief sought, including reference to any statutory relief sought (O 4 r 3). No statutory causes of action are pleaded in SC No 4 otherwise than upon the basis of and pursuant to the TP Act. Accordingly I will pay no further regard to any supposed statutory cause of action nominated in the amended applications, otherwise than pursuant to the TP Act, though I observe that no such causes of action would be in any event open in law to be pursued under the Banking, Judiciary, and Limitation Acts, and having regard to my rejection, for reasons later appearing, of the TP causes of action, it will be apparent that I would have adopted the course of rejecting in principle causes of action foreshadowed in respect of the Fair Trading Act and the Australian Securities and Investments Act. In addition, further relief is stated by each application to be based upon “the general law of the Commonwealth and the State of New South Wales”. SC No 4 also pleads common law causes of action under headings described as conspiracy, false imprisonment, false imprisonment and malicious prosecution in combination, trespass to property, detention and conversion, injurious falsehood and breach of duty of care, which, for reasons later set out, I have decided substantially not to strike out.

17                  I would add that there is a multiplicity of instances in both amended applications, where the remedy sought thereby is prefixed by “a determination and declaration”, or else simply “a determination”, and the same course is followed in segment 21 of SC No. 4. Unless the expression “determination” is intended to be merely synonymous with declaration, the use thereof is misconceived or merely surplusage. The Court’s power to grant any relief purportedly sought by the causes of action the subject of SC No 4 would be confined relevantly to making declarations and orders, and in the case of orders, the same would relate to awards of damages or the grant of injunctions.

18                  Both of the amended applications accompanying SC No 4 seek a multiplicity of declarations which are misconceived, both in structure and apparent purpose. I will illustrate that observation by reference to Mr Hamod’s amended application. Part 1 thereof seeks a declaration that in the period from February 1994 to 20 January 1995, Mr Hamod was engaged in trade and commerce, without stating the reason or basis therefor by reference to some material facts or circumstances which might conceivably attract the grant of declaratory relief . Thereafter follow numerous stated conclusions as to alleged factual circumstances, in relation to each of which Mr Hamod purportedly seeks declaratory relief by way of confirmation of those conclusions. The framework of that material demonstrates an entire absence of comprehension of the juridical nature and purpose of declaratory relief. What Mr Hamod has purportedly sought to do is to postulate, throughout both of these lengthy amended applications, numerous declarations concerning matters and circumstances which, to his apparent perception, would constitute or assist to constitute, or would establish or assist to establish, elements or components of the various causes of action pleaded by SC No 4. Declaratory relief involves the making of declarations as to rights and entitlements, and not as to evidentiary matters which might assist to establish the elements and viability of causes of action designed to establish rights and entitlements. Moreover the subject matter of a right or entitlement sought to be declared must be justiciable (Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 110 (per Hill J, with whose reasons for judgment Sheppard J agreed). These amended applications bear virtually no manifestation of a comprehension of the notion of a justiciable right.

19                  In many instances, I should add, declarations and orders are apparently sought to be established against Union Bank of Switzerland, presumably the offshore parent of UBS (see for example pars 4(a) and 10). Since the Union Bank of Switzerland is not a respondent to the proceedings (see in that regard [6] of my reasons for judgment of 26 April 2001), the amended applications in that regard are further misconceived in principle, at least to the extent that the Union Bank of Switzerland itself is purportedly sought to be bound by any such purported declarations and orders.

Background circumstances alleged by the applicants

20                  Apart from 3 pages of so-called “Preliminary Matters”, SC No 4 commences with 19 pages of so-called “Material Facts” contained in pars 6.1 to 13.2 thereof. It is appropriate that I summarise the allegations the subject of that material as follows:

(i)         Prior to June 1994, P.T. Galaxy Indonesia Trust (“Galaxy”) was a trust estate constituted and maintained under and pursuant to the laws of Indonesia.

(ii)        During the period from February 1994 to January 1995, Dr Damanick was a trustee and Chairman of Galaxy and Messrs O’Dowd and Clarke were servants or agents of Galaxy.

(iii)       Prior to June 1994, Galaxy was the last holder of the Platinum Certificate issued by the Union Bank of Switzerland on 27 October 1978.

(iv)       The Platinum Certificate in the hands of the bearer constitutes evidence of ownership to the commodity the subject thereof.

(v)        On 27 June 1994, Mr Hamod obtained possession, custody, care and control of the Platinum Certificate for the sale of the platinum for which it was issued, and for the retention from the proceeds of sale thereof of an amount owed by Galaxy to Mr Hamod and Hamock on account of costs, disbursements and commission relating to the sale of 9 other commodity bearer certificates for deposit of gold and platinum owned by Galaxy and of the Platinum Certificate itself.

(vi)       Pursuant to the agency agreement, Mr Hamod and Hamock supplied services and effected the sale of gold and platinum certificates on behalf of Galaxy to buyers introduced by them, for which they became entitled to be paid costs and commissions.

(vii)      Despite repeated requests Galaxy failed to pay those costs and commissions.

(viii)      By reason of the foregoing matters, Mr Hamod is the lawful owner of the Platinum Certificate and of the platinum the subject thereof.

(ix)       In September 1994, O’Dowd informed Mr Hamod and Hamock in writing and orally that Galaxy would pay the moneys owing to them after Mr Hamod returned the Platinum Certificate.

(x)        Mr Hamod and Hamock refused to return the Platinum Certificate until payment of those moneys.

(xi)       In October 1994, O’Dowd on behalf of Galaxy threatened to send Mr Hamod to prison for theft of the Platinum Certificate and to kidnap Mr Hamod’s daughter until the Platinum Certificate was returned to the Trust.

(xii)      In October 1994, two persons attended Mr Hamod’s home to collect the Platinum Certificate by force.

(xiii)      In October 1994, Mr Hamod reported those threats from Galaxy to Nowra Police and supplied documentary material to the Police concerning his right to hold the Platinum Certificate and the other certificates.

(xiv)     The Nowra Police informed Mr Hamod that the Federal Police of Australia would be engaged to find O’Dowd and stop the threats.

(xv)      In October 1994, a member of the Federal Police informed Mr Hamod that Galaxy had complained to Interpol and the Federal Police of Mr Hamod’s theft of the Platinum Certificate.

(xvi)     Mr Hamod referred the Federal Police to the Nowra Police for the information which he had supplied to the Nowra Police concerning his right to hold the Platinum Certificate and to sell the same in order to recover moneys owing to him and Hamock by Galaxy.

(xvii)     In early November 1994, the Nowra Police informed Mr Hamod of conferences with the Federal Police and their review of his documentary evidence and had dismissed the allegations of Galaxy to Interpol and the Federal Police.

(xviii)    Also in early November 1994, a Mr Clarke of Galaxy informed Mr Hamod that Galaxy had terminated the services of O’Dowd for misleading Galaxy about the services of Mr Hamod and Hamock, and that he had been engaged by Galaxy to negotiate settlement of the moneys owing by Galaxy to Mr Hamod and Hamock; Clarke offered $200 million for that purpose which Mr Hamod refused.

(xix)     Still in early November 1994, Clarke said to Mr Hamod that Galaxy consented to Mr Hamod selling the Platinum Certificate and deducting from the proceeds of sale the moneys owing to Mr Hamod and Hamock for costs and commissions for the sale of the 9 gold and platinum certificates and of the Platinum Certificate.

(xx)      From July 1994 to January 1995, Mr Hamod entered into negotiations for the sale of the Platinum Certificate with named representatives for seven international banks and banking groups, including Credit Swiss and the Union Bank of Switzerland.

(xxi)     In October 1994, Mr Nicholas Wall and Mr John McMurtrie (the managing director of UBS), invited Mr Hamod and Hamock to deposit the Platinum Certificate in a bank account with UBS and to withdraw funds against the same for working capital and projects, but Mr Hamod declined the invitation.

(xxii)     On or about 17 October 1994, “UBS by its agent Mr Wall commenced negotiations with [Mr Hamod] and with the directors of [Hamock] for the purchase of the Platinum Certificate”. Having regard to the importance of the functions undertaken by Mr Wall, in Mr Hamod’s narrative of events, allegedly on behalf of UBS, I would observe that the particulars of that alleged agency of Mr Wall, as contained in SC No 4, appear to implicate UBS as his principal, solely by virtue of a meeting held on 20 January 1995 in UBS’ office premises in Sydney. That meeting is said to have involved Mr Phillip Muhlbauer, the so-called chief of staff of UBS, and his alleged authentication on that occasion of the authority of Mr Wall as agent for UBS for the purpose of negotiations relevantly with Mr Hamod and Hamock. Numerous instances pleaded by SC No 4 as to Mr Wall’s assertions, including assertions of authority on his part to act and speak on behalf of UBS to the extent variously pleaded, are not of course evidence per se of an authority to bind or commit UBS to the extent variously pleaded. Wall was apparently a person who engaged in legal work in a solicitor’s office in Sydney, and who appears to have played a prominent role of perhaps an ambiguous kind in the circumstances to which I referred to in [18-27] and [31] of my reasons for judgment relating to SC No 2. Mr Muhlbauer’s role in the narrative of events leading to Mr Hamod’s arrest, purportedly on behalf of UBS, was referred to in [24], [27] and [31] of those reasons for judgment relating to SC No 2.

(xxiii)    On 18 January 1995, Mr Wall informed directors and solicitors for Mr Hamod and Hamock that representatives of the Union Bank of Switzerland had arrived in Australia and were working with UBS representatives to produce documentation relating to the Platinum Certificate.

(xxiv)    In the period from November 1994 to early December 1995 (which I interpolate to point would appear to be intended to read “early December 1994”), Mr Wall purportedly on behalf of UBS “demanded an exclusive agency and a power of attorney and guarantee from [Mr Hamod] for payment of US$600 million in commissions to servants and agents of [UBS] to facilitate the sale of the said Platinum Certificate to the Union Bank of Switzerland”.

(xxv)    Mr Hamod refused to sign documents sent to him by Mr Wall on 6 November 1994, or to grant exclusive agency to UBS, or to enter into an agreement for payment of commissions to any party to facilitate the sale of the Platinum Certificate to the Union Bank of Switzerland.

Neither the State nor UBS submitted that the foregoing introductory material was specifically irrelevant to any one or more of the causes of action which have been subsequently framed in segments 22 to 29 thereof, although UBS submitted unspecifically that the material “largely plead[s] matters that are immaterial”. I think that the material does serve to provide at least for the most part background material to the central events of December 1994 and January 1995, and should be allowed to stand upon that basis. Of course Mr Hamod will be required to prove the material in due course by affidavit, including proof of the documents referred to, or accounting for the loss thereof if the same are no longer available, being a task which would tend to be beyond Mr Hamod’s capacity as an unqualified person. At that stage, issues as to admissibility of documents upon the additional basis of relevance would fail to be resolved.

Causes of action pleaded against the State by SC No 4 pursuant to ss 45D, 45DA, 45DB, 52 and 53 of the TP Act

21                  In my reasons for judgment of 28 February 2001 relating to SC No 2 set out [41-43] of those reasons, I concluded that no causes of action pleaded against the State based on ss 45D, 45DB and 52 of the TP Act were viable in law. Notwithstanding those rulings, SC No 4 pursues causes of action purportedly based not only upon those three sections of the TP Act, but in addition based upon ss 45DA and 53 of the TP Act.

22                  The causes of action of the applicants for contravention of the TP Act on the part of the State are grouped in the following segments of SC No 4 as follows:

·          pars 18.1 to 18.20 relating to business activities said to have been carried on between October 1994 and 20 January 1995, involving Mr Hamod’s possession of and negotiations for the sale of the Platinum Certificate the focus of the proceedings and concluding with his arrest and imprisonment (ss 45D, 45DA, 45DB, 52 and 53).

·          pars 21.1 to 21.10 relating to the conduct of police officers in the giving of false testimony relating to the Platinum Certificate and the seizure of documents said to establish that the Platinum Certificate was genuine, and relating also to the conduct of UBS in making false publications locally and internationally concerning the authenticity of the Platinum Certificate, being falsehoods claimed to have been maliciously motivated and to have prevented Mr Hamod and Hamock from selling or passing title to the Platinum Certificate and in engaging in trade and commerce (ss 45D, 45DA, 45DB, 52 and 53).

·          pars 23.1 to 23.14 referrable to events and circumstances appertaining to the alleged prevention of the applicants’ sale of the Platinum Certificate, and Mr Hamod’s arrest and imprisonment, including concealment of evidence of perjury (ss 45D, 45DB and 52).

·          pars 24.1 to 24.5 containing allegations of conspiracy and of giving false information in order to injure Mr Hamod and to obtain the Platinum Certificate by unlawful means (ss 45D, 45DB and 52).

·          pars 27.1 to 27.3 relating to conduct on the part of the State, undertaken by the Minister for Land and Urban Development in concert with Wollongong City Council, for the purpose of “preventing [Mr Hamod] from engaging in trade and commerce”, and “from financing the legal costs of the proceedings before the Honourable Court” (s 45D).

23                  I pointed out in my reasons for judgment of 28 February 2001, in relation to the causes of action pleaded against the State by SC No 2 for the contravention of ss 45D, 45DB and 52 of the TP Act, that prior to the enactment of s 2B thereof which took effect on and from 21 July 1996, the TP Act had no application to the activities of a State undertaken solely for traditional government purposes, and further that in any event, the State was not a person for the purposes of s 22(1)(a) of the Acts Interpretation Act 1901 (Cth) (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 and 349). I further pointed out that traditional government activities would include conduct in the nature of police and corrective services, and the prosecution of alleged offenders. I also mentioned that s 2B of the TP Act had the effect of binding the States to compliance with Part IV of the Act from 21 July 1996, but only in so far as the Crown carries on a business, and therefore not in relation to the provision of services of the kind mentioned above.

24                  As already foreshadowed, the causes of action brought against the State by SC No 4 purportedly based upon the TP Act allege contraventions of ss 45D (relating to secondary boycotts for the purpose of causing substantial loss or damage), 45DA (relating to secondary boycotts for the purpose of causing substantial lessening of competition), 45DB (relating to boycotts affecting trade or commerce), 52 (relating to misleading or deceptive conduct) and 53 relating to false or misleading representations). Sections 52 and 53 do not fall within Part IV of the TP Act and therefore have no relevance, and stand outside the operation of s 2B, and in any event, the conduct by a State in the nature of police and corrective services does not constitute engagement in trade or commerce, being an essential element stipulated by ss 52 and 53. The pleading of SC No 4 seemingly seeks to overcome part of those obstacles by referring to activities of Mr Hamod and Hamock as involving the engagement on their part in trade and commerce, but it is of course the State’s activities which are required to satisfy the statutory test, not the activities of the applicants. It is plain that no aspect of the conduct of the State complained of in the various paragraphs of SC No 4, which I have summarised above, “…is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character…”, to cite from Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603 (Mason CJ, Deane, Dawson and Gaudron JJ), or as said by Toohey J at 614, “…[t]he question is not whether the conduct engaged in was in connection with trade or commerce or in relation to trade or commerce. It must have been in trade or commerce”.

25                  It follows that in so far as SC No 4 pleads causes of action against the State based upon the provisions of the TP Act to which I have referred, the same are misconceived and unsustainable, and must be struck out.

Causes of action pleaded against UBS by SC No 4 pursuant to ss 45D, 45DA, 45DB, 52 and 53 of the TP Act

26                  The causes of action of the applicants for contravention of the TP Act on the part of UBS are grouped together in SC No 4 as follows:

·          pars 18.1 to 18.20: see [22] above; in addition there is pleaded in this group of paragraphs details of Hamock’s business activities and interests, including the existence of trade agreements, joint venture agreements etc “worth approx US$900 millions for investment in industrial properties and premises in Australia and for export and import of engineering services and industrial plants and equipments and commodities to Iran and the Middle East”; thereafter follows reference to events commencing from 17 October 1994 involving negotiations conducted between Mr Hamod and Hamock’s directors and UBS’ agent Mr Wall for the purchase of the Platinum Certificate (UBS being said to be representing Union Bank of Switzerland), and to the later involvement of police officers leading to Mr Hamod’s arrest and imprisonment, and to the seizure of the Platinum Certificate and other unspecified “assets and goods, documents and records of Hamock”.

·          pars 19.1 to 19.7 relating to false representations on the part of UBS and Union Bank of Switzerland to the Local Court that the Platinum Certificate was not genuine, with consequences as to Mr Hamod’s false imprisonment and malicious prosecution and the inability of Mr Hamod and Hamock to continue negotiations for the sale of the Platinum Certificate and with its business and trade contracts, and the closure of the applicants’ business.

·          pars 21.1 to 21.10 relating to the same matters summarised in [22] above appertaining to those pars.

·          pars 23.1 to 23.14 relating to the same matters summarised in [22] above appertaining to those pars.

·          pars 24.1 to 24.5 relating to the same matters summarised in [22] above appertaining to those pars.

·          pars 25.1 and 25.2 containing allegations of misleading and deceptive conduct of UBS in concert with Union Bank of Switzerland by preventing the applicants from depositing the Platinum Certificate in a bank account and withdrawing funds “to mitigate losses and damages… and resume trade and commerce”.

·          pars 26.1 to 26.3 concerning the conduct of UBS in concert with Union Bank of Switzerland by way of preventing the applicants from engaging in trade and commerce by reference mainly to the Platinum Certificate.

·          pars 27.1 to 27.3 relating to the same matters summarised in [22] above appertaining to those pars.

27                  In my reasons for judgment of 28 February 2001 at [50], I emphasised, in relation to the pleading by SC No 2 of breaches of ss 45D, 45DB and 52 of the TP Act, that it was incumbent upon the applicants to plead with precision the following material circumstances or integers:

(i)         the conduct complained of, the persons who engaged in the conduct and in what representative capacity, and when and where the same occurred;

(ii)        the facts and circumstances which establish that the conduct complained of occurred in trade and commerce;

(iii)       the basis for the contention that the conduct complained of was misleading and deceptive; and

(iv)       the loss and damage occasioned by such misleading and deceptive conduct; I said in that latter regard that I was unable to relate the broad spectrum of damages attributed by the SC to the consequences of the alleged misleading and deceptive behaviour on the part of either the State or of UBS.

28                  It is plainly not enough for the applicants to assemble the kind of historical narrative summarised in [20] above, and to impose upon UBS the task of divining what aspects thereof are material components of particular causes of action being pursued upon the basis of the sections of the TP Act supposedly relied upon. An adequate pleading of a cause of action requires the attribution of facts or circumstances material to each essential element thereof (inclusive of each element of any statutory cause of action), such as those facts and circumstances summarised in sub-paragraphs (i) to (iv) above.

29                  The shortcomings in SC No 2, by reason of the failure of Mr Hamod and Hamock to plead those material circumstances or integers in relation to each of the purported causes of action for contravention of ss 45D, 45DB and 52 of the TP Act, continue to pervade SC No 4, as does the failure to plead the material circumstances or integers of the purported further causes of action propounded by SC No 4 for contravention of ss 45DA and 53 of the TP Act. The applicants plainly offend the basic principles of pleading, restated in Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 and prescribed by O 11 r 2 of the Federal Court Rules, by narrating a series of factual circumstances placed merely under a heading which refers to the sections of the Trade Practices Act purportedly relied upon as constituting causes of action, instead of pleading the material facts, but no more, related to each element of each statutory cause of action propounded. That is not to imply in any event that the circumstances of the applicants’ narrative of events otherwise evince the committal of secondary boycotts, or misleading and deceptive conduct in trade and commerce, on the part of the State or UBS.

30                  Moreover specifically in relation to s 45D, no attempt is made by SC No 4 to accommodate the circumstance that this anti-boycott provision underwent significant change by Act No 60 of 1996, yet contraventions thereof appear to be alleged in relation to events which occurred mainly before, and to a limited extent after, the time when that amendment took effect. In so far as events occurred prior to the amendments to s 45D taking effect (which would appear to be the majority thereof), any offending conduct must be pleaded to have had, or be likely to have had, the effect of causing a substantial lessening of competition, which has not been undertaken.

31                  Other obvious basic defects in the pleading of these statutory causes of action have been distilled by UBS, such as the pleading of many immaterial and irrelevant facts and circumstances in confusing ways, being immaterial and irrelevant to the elements of these statutory causes of action, and the raising of allegations against the Union Bank of Switzerland and the Commonwealth, albeit that the Bank and the Commonwealth are not parties to the proceedings (see [6] in my reasons for judgment of 26 April 2001). Some examples of the pleading of immaterial and irrelevant facts and circumstances in the context of these statutory causes of action, include, for instance, allegations of injurious falsehood and conspiracy. Also allegations are made of false representations, without identifying the substance thereof, or giving reasons why the representations were false.

32                  I have recorded the foregoing pleading defects and shortcomings in only general terms, since the legal representatives of UBS have already set out numerous specific examples of those defects and shortcomings in writing and orally, and because the applicants have either failed to comprehend, or decline to observe, what I stated fundamentally in [50] and [52] of my reasons for judgment in relation to SC No 2. It has been therefore unnecessary for me to engage in discussion of the detailed submissions of UBS, paragraph by paragraph, as to the barring of these statutory causes of action by time limitation. I do not consider that it is the role or function of the Court to address each of the 65 paragraphs of SC No 4 summarised in [22] and [26] above, and to engage in a minute and detailed account of the shortcomings thereof as pleadings. What I have already described in broad summary has been sufficient to indicate the inadequacy of the pleading of each of the statutory causes of action pursuant to the TP Act purportedly attempted by SC No 4. And for what it may matter, a cursory reading of the statement of claim filed on 11 May 2001 and the next following SC No 3 further illustrates each and all of the defects and criticisms which I have made above in relation to SC No 4, concerning causes of actions claimed to arise pursuant to the various sections of the TP Act purportedly relied upon. Leave will not be granted to replead any of the statutory causes of action which have been identified or discussed above.

Causes of action for conspiracy pleaded against UBS by SC No 4

33                  In [43] of my reasons for judgment relating to SC No 2, I indicated that there was an absence of identification of material facts establishing either one of the two ways in which the tort of conspiracy can be committed at the present time, namely by the combination of two or more persons to injure a person or entity by lawful means, and thereby cause that person or entity economic loss, or by the combination of two or more persons to commit an unlawful act, and thereby cause a person or entity economic loss by that unlawful act: Trindade et al The Law of Torts In Australia 3^rd ed. 1998 at 227.

34                  The cause of action for conspiracy propounded by SC No 4 is pleaded in segments 14.1 to 14.6 thereof, and may be summarised as follows:

(i)         In early December 1994, with intent to injure Mr Hamod and/or Hamock, UBS conspired with Union Bank of Switzerland to prevent Mr Hamod and/or Hamock from selling or entering into negotiations to sell the Platinum Certificate.

(ii)        In pursuance of the conspiracy, UBS by its employees or agents (Ludowici, Muhlbauer and Wall), together with the Union Bank of Switzerland by Rene Schicker, represented to police officers in the service of the State that the Platinum Certificate held by Mr Hamod was not genuine but was a fake and a forgery.

(iii)       The making of the representations caused the police officers of the State to seize and take from Mr Hamod the Platinum Certificate, and thereby to prevent Mr Hamod or Hamock from selling and passing title thereto to any purchaser.

(iv)       On 20 January 1995, following upon receipt of such representations from UBS, certain police officers (identified by the surnames Day, Riddle, Scrimingeor and Biaggi and “other police officers”) arrested Mr Hamod and seized the Platinum Certificate and associated documents of Mr Hamod, and caused his imprisonment for eight months.

(v)        Those police officers also arrested, harassed and intimidated the directors of Hamock, and Hamock’s solicitor and bank manager, and seized the assets and records etc of Hamock.

(vi)       As a consequence Mr Hamod was physically unable to sell the Platinum Certificate pursuant to his right to do so conferred by Galaxy, and was thereby unable to earn commissions from the sale of the Platinum Certificate and of the gold and platinum certificates, and lost the benefit of his consultancy retainers with Hamock, and with its joint venture company National Fruits & Nuts Pty Limited and “overseas clients”, and was unable to physically attend to “legal matters in the Supreme Court of Victoria and the Federal Court of Australia”, and Hamock for its part lost the benefit of its consultancy retainers, and was unable to continue with export and import commodity contracts, etc.

35                  UBS submitted that the cause of action for conspiracy alleged between UBS and the Union Bank of Switzerland was first raised by SC No 3, and is now statute-barred, as was the alleged conspiracy to prevent the applicants from selling or entering into negotiations to sell the Platinum Certificate. The cause of action for conspiracy pleaded by SC No 2 was said to have been attributable to the combination of UBS and the State. Moreover it was submitted by UBS that there has not been pleaded facts and circumstances disclosing why loss or damage was caused by Mr Hamod’s arrest, imprisonment, harassment and intimidation, and in particular those facts and circumstances preventing the selling, and negotiations for the selling, of the platinum certificate. It is broadly asserted by Counsel for UBS that “[t]he matter is further complicated when many of the heads of loss or damage do not appear to have an obvious connection with arrest and imprisonment anyway”.

36                  I do not think that those submissions of UBS justify the disallowance of the cause of action presently framed for conspiracy. I should point out however that it is unclear, from the material placed before me, as to when it is alleged that the combination between UBS and the Union Bank of Switzerland ceased to be in force. In that regard I observe for instance that the prosecution of Mr Hamod did not terminate until 3 April 1998. Moreover despite the obvious monetary extravagance of the quantity of damages claims of Mr Hamod and Hamock, it is not out of the question that the poignant circumstances of Mr Hamod’s arrest, following by imprisonment for eight months before commencement of his trial, in combination with the devotion of time and resources required of him to defeat what became a protracted prosecution, would have occasioned radical damage to whatever business activities, however exaggerated in size or scope, were being undertaken by Mr Hamod and by Hamock as the company he claims to have controlled. The findings of the Downing Centre Local Court, partially extracted in [34] of my reasons for judgment of 28 February 2001, tend to exemplify the length of the period of time during which loss and damage was sustained as a result of the traumatic events of late 1994 and early 1995 which appear to have befallen Mr Hamod and Hamock.

37                  Given that the prosecution of Mr Hamod did not terminate in his favour until 3 April 1998, and the implications to Mr Hamod and Hamock of contesting what was a lengthy prosecution over a protracted period of time caused at least in part by the prosecution, and given the accuracy and validity of the findings of the Local Court, including the apparent involvement of UBS in relation at least to the commencement of the prosecution, it may be necessary for the operation of O 13 r 2 sub-r 7(a) of the Federal Court Rules (promulgated pursuant to s 59(2B) of the Federal Court of Australia Act 1976 (Cth)) to be invoked by the applicants, should UBS raise limitation of time defences. In the meantime, I do not propose to rule upon the time limitation submission of UBS, other than to point out the hurdles confronting the same if it is to be pleaded, and to reject the submission as a ground for strike-out of this cause of action.

38                  The applicants further contend that pars 14.5 and 14.6 of SC No 4 are embarrassing, in that they fail to plead any causal connection between the conduct of UBS and loss and damage to the applicants, and in particular, why loss or damage said to have arisen from the arrest, imprisonment, harassment and intimidation complained has a causal connection with a conspiracy to prevent the sale or negotiations for the sale of the Platinum Certificate, and that the matter is further complicated “when many heads of loss or damage do not appear to have an obvious causal connection with arrest and imprisonment anyway”. Whilst those submissions may have some degree of merit, I do not think that they require the strike-out of this cause of action for conspiracy or any material part thereof. The traumatic circumstances occasioned to Mr Hamod by way of his arrest, imprisonment and prosecution, would inherently tend to occasion the kind of business disruption and interference to him and Hamock whereof SC No 4 complains.

39                  In my opinion, this cause of action for conspiracy should not be struck out. Whilst allegations are pleaded in this context against Union Bank of Switzerland, apparently the offshore or non-resident parent company of UBS, the fact is that the non-joinder of the Bank is not fatal to the pleading of the cause of action (see O 6 r 7(1) of the Federal Court Rules). I have taken into account in that regard the reference to “the Swiss Bank UBS” in the reasons for judgment of the Local Court.

Cause of action for false imprisonment pleaded against the State by SC No 4

40                  This cause of action pleaded in segment 15 appears to be maintained against the State alone. The State originally complained in the context of SC No 3 that “[t]he pleading is deficient, in that it fails to identify the particular servants or agents against whom the claims are made… Nor is it stated from where such seizures took place”. There is no substance in the complaint, to the extent that it is still maintained in relation to SC No 4. Detectives Day and Riddle, and also Detectives Eastham and Green, are identified thereby. For what it may matter, the names of prison officers, and other police officers, would doubtless be disclosed by the State on discovery. The times and duration of Mr Hamod’s imprisonment should be a matter of State record. Incidentally in [34] of my reasons for judgment of 28 February 2001, I stated that “… most of the important findings of the Downing Centre Local Court… cannot be relied upon by the Applicants by way of issue estoppel”. Recent developments of that doctrine, particularly in the United Kingdom, might possibly not support that earlier view which I there expressed.

41                  It is as convenient here, as much as anywhere else in the course of the present reasons for judgment, to repeat what I have earlier said in these proceedings several times, especially since Mr Hamod is once again in receipt of legal assistance (though to what extent is unclear), that he should in his own best interests and those of Hamock heed and implement conservative and realistic legal counsel and advice concerning the scope and monetary quantification of the claims for damages, if he wishes these proceedings ever to be heard, or to be heard in the foreseeable future. Whilst of course I have heard very little evidence in Court on the subject, it is patently obvious that the calculations of damage involved are far beyond anything which could be sensibly obtained. Mr Hamod and Hamock will face prolonged, if not endless, interlocutory disputes relating the processes of discovery and interrogations, if they persist with unrealistic damages claims, as well as untold expense. This is not the first time that I have emphasised those matter to Mr Hamod.

Cause of action for false imprisonment and malicious prosecution

42                  According to the heading in SC No 4, segment 16 purports to plead these two causes of action together, notwithstanding what I pointed out in [44] of my reasons for judgment of 28 February 2001 as to the distinction relevantly between the two. Whilst not entirely clear, it would seem that these allegations are propounded against UBS, and not also against the State. UBS makes the following submissions:

(i)         There is no pleading that UBS was a joint tortfeasor with the State in relation to any malicious prosecution by the State, nor that UBS itself engaged in any malicious prosecution.

(ii)        Any such cause of action against UBS, not having been previously made, would be statute barred.

(iii)       Paragraph 16.3 is embarrassing and confusing, and in any event does not disclose a cause of action, and would be by now statute barred.

(iv)       Many paragraphs plead immaterial facts, for example pars 16.5, 16.6 and 16.11.

(v)        Paragraph 16.7 contains an unspecific scandalous accusation against UBS, and also pleads immaterial facts, and discloses in any event no causes of action.

(vi)       Paragraph 16.12 is embarrassing, and a number of matters are “not identified”.

(vii)      Paragraphs 16.12 to 16.16 plead loss and damage without identifying causal connection with any conduct of the State or UBS, and are therefore embarrassing.

(viii)      The particulars of special damages appear to claim aggravated and punitive damages, but it is not apparent what facts are relied upon to give rise to those entitlements, and those facts should be specifically pleaded; reference was made in that context to [56] of my reasons for judgment of 28 February 2001.

43                  I would make the preliminary observation that having re-read what I previously said in [44] of my reasons for judgment of 28 February 2001 in relation to what appears in Fleming The Law of Torts 9^th ed. 1998 at 33-37, I think that the passage requires a degree of correction. What the learned author said at p 37 included the following:

“…Where the unlawful arrest has been procured with the aid of the police, the prosecutor’s liability depends on whether the detention was carried out at his own direction or was the result of an independent decision by the police. Merely giving information or signing the charge-sheet does not expose the complainant to an action for false imprisonment, if the police act on their own initiative in making an arrest. On the other hand, if he does not content himself with proffering information, but actually directs the officer to make an arrest, he thereby makes the constable his ministerial agent and incurs responsibility as if it were his own act. Although these principles are well understood, their application to particular fact situations often gives rise to difficulty, and some of the decisions are not easy to reconcile…”

What has been pleaded by pars 16.1, 16.3 and 16.7 in SC No 4 leads me to the view that I should not strike out segment 16 thereof merely by reason of its characterisation as “False Imprisonment and Malicious Prosecution”. In substance the cause of action as framed and articulated is more probably one for false imprisonment alone, upon the footing that although UBS was the prime mover in relation to the police investigation into and subsequent arrest of Mr Hamod, it was the State which instituted and thereafter pursued the wrongful prosecution of Mr Hamod. Consistently with that observation, I observe that SC No 2 purported to plead a cause of action for false imprisonment, and not for malicious prosecution.

44                  Read in that way, I do not think that I should accede to the strike-out submissions advanced by UBS, so long as Mr Hamod confirms to UBS what I have just observed. It seems to me that what has been pleaded in pars 16.1, 16.3 (to the extent of the particulars contained in sub-pars (iii), (iv), (vii), (ix), (xv) and (xvi)), 16.7 and 16.12 lends support to that view. It is true that Mr Hamod pleads numerous if not excessive particulars of malice in relation to pars 16.3 and 16.4, and makes certain allegations against or in relation to police officers and the Union Bank of Switzerland within the scope of those purported particulars which, although part of a comprehensive narrative of startling events (some of which appear to have been confirmed by the Local Court’s findings), are to my mind matters strictly of evidence, rather than particulars of material elements or components of a cause of action for false imprisonment. However in my opinion, UBS is not required to plead to any purported particulars, and so long as I make clear to the applicants here and now, which I do, that none of such particulars comprise elements or components of a cause of action, UBS should not be thereby prejudiced. I appreciate the implications of UBS’ concern as to what has been described as an “unspecific scandalous accusation against UBS” contained in sub-par 16.7, but in the light of the reasons for judgment of the Local Court of 3 April 1998, there seems to me to be very grave cause for concern in relation to the behaviour of some one or more persons which might have led to the misfortunes which befell Mr Hamod, as found by the presiding Magistrate, and as a possible consequence, to his company Hamock.

45                  In the result, I am not persuaded that I should strike-out the cause of action pleaded against UBS for so-called “false imprisonment and malicious prosecution”, so long as it is accepted by the applicants that the same is to be characterised as a cause of action for malicious prosecution.

Cause of action for trespass to property, detention and conversion pleaded against the State by SC No 4

46                  The pleading of these causes of action appears in segment 17 of SC No 4. They are pleaded against the State alone and relate to very numerous items of personalty, largely of a documentary and record-keeping kind, and also comprising personal items and business equipment, business and trade contracts, letters of credit, files and programmes and correspondence, to name some categories. Several letters of credit for substantial sums are referred to, along with legal documents. It is alleged that many demands have been made by the applicants upon the State since 1995 for the return of this material. The pleading also categorises a large number of files, folders, correspondence and trade agreements said to have been since returned by the State to the applicants. Presumably in relation to those items, the remedy sought is confined to damages for detention.

47                  The State and UBS do not appear to have demurred, at least in any emphatic way, to the framework of these causes of action. In order to reduce the burden of detail already imposed by SC No 4, I would foreshadow the view that there should be a separate trial of this cause of action in advance of the trial of the remaining causes of action, in order to address the formidable minutia of much of this detail, and without unduly distracting the trial of the critical issues concerning the financial viability of the Platinum Certificate, and of the other certificates, and Mr Hamod’s arrest, trial and imprisonment. How Hamod will be able to establish that viability is not presently apparent. I await the reaction of the parties to this proposal for a separate trial, which may save considerable legal costs and expenses in the long run. The parties should be on notice that the evidence in any such separate trial would be primarily on affidavit, though the resolution of credit issues arising in the context thereof may well have an ultimate bearing upon the resolution of the issues to be addressed in what would be the main trial.

Cause of action for injurious falsehood pleaded against UBS, and additionally against the State and UBS together by SC No 4

48                  This cause of action was not pleaded in SC No 2, and hence no reference appears thereto in my reasons for judgment of 28 February 2001. It purports to incorporate pars 18.1 to 18.5 of SC No 4, which appear therein under the heading “Sections 45D, 45DA, 45DB, 52 and 53”. Those pars are of a prefatory nature, referring to the following matters:

(i)         Mr Hamod’s business activities conducted between October 1994 and 20 January 1995;

(ii)        Mr Hamod’s possession etc of the Platinum Certificate and his authority to sell the same in order to recover what had been owing to him from his sale of the gold and platinum certificates previously mentioned.

(iii)       The nature of Mr Hamod’s business activities during the abovementioned period of about four months, his engagement with the engineering and manufacturing business as of Hamock Constructions Pty Ltd and Hamock Technical Services Pty Ltd, and his investment in properties, shares, commodities and joint venture projects, and in the export, import and distribution, of commodities, plant and equipment, and the undertaking of engineering and construction services.

(iv)       The holding of trade agreements, contracts and joint venture agreements said to be worth approximately $900 million as at 20 January 1995.

49                  The first species of conduct by way of injurious falsehood was in summary pleaded in pars 20.1 to 20.6 of SC No 4 as follows:

(i)         In the period from December 1994 to April 1998, UBS and the Union Bank of Switzerland falsely informed the State that the Platinum Certificate was a forgery, and that Mr Hamod and Hamock were attempting to defraud UBS and the Union Bank of Switzerland of $66 billion.

(ii)        UBS and the Union Bank of Switzerland were aware and continued to be aware that the Platinum Certificate was genuine, and that Mr Hamod was the lawful holder thereof and Hamock was the beneficiary thereof, and further that the allegations made by UBS and the Union Bank of Switzerland about Mr Hamod and Hamock to the State were false. In that context it was further pleaded that the Platinum Certificate was registered with the International Monetary Fund, the World Bank, and the Federal Reserve Bank of America and “other authorities in the world”.

(iii)       As a consequence of those injurious falsehoods, Mr Hamod was arrested, imprisoned and prosecuted, and his assets and records including the Platinum Certificate were seized and detained, and Mr Hamod and Hamock were prevented from engaging in trade and commerce, and from selling and passing title to the Platinum Certificate.

(iv)       As a further consequence, Mr Hamod was and continues to be unable to exercise the right of sale of the Platinum Certificate conferred on him by Galaxy, and to receive the costs, disbursements and commissions due to him from the sale of the gold and platinum certificates and of the Platinum Certificate.

(v)        As yet a further consequence, Hamock was and continues to be unable to receive the costs, disbursements and commission due to it from the sale of the Platinum Certificate.

It appears that the amounts involved in (iii) and (iv) above are identical. The consequences of non-payment to Hamod and Hamock is said to have resulted in “special damages on the amount owing by [Galaxy] to the applicants”.

50                  The second species of conduct by way of injurious falsehood was in summary pleaded in SC No 4 as follows:

(i)         UBS committed injurious falsehood against Mr Hamod and Hamock when by its servants and agents Ludowici, Muhlbauer, Wall and other servants and agents, UBS informed the State that the Platinum Certificate was a fake or forgery, although the applicants were then negotiating the sale thereof.

(ii)        UBS was and remains aware that the Platinum Certificate was and remains genuine, and that Mr Hamod was and remains the lawful holder thereof, and Hamock was a beneficiary (presumably meaning beneficial owner) thereof, and that the allegations of UBS and the Union Bank of Switzerland about Mr Hamod and Hamock to the State were false.

(iii)       The State committed injurious falsehood against Mr Hamod and Hamock when the State, by its servants and agents Superintendent Lysaught and Detectives Edgerton, Flinders, Day and Riddle, and other police officers, informed the Local Courts, and the Supreme Court, and the local and international media, that the Platinum Certificate was a “fake and forgery”, and that Mr Hamod had committed “the biggest fraud of the century”, and that Mr Hamod and Hamock were bankrupt (extensive particulars were provided).

(iv)       The State by Detective Superintendent Green, and Superintendent Lysaught, and also Detectives Eastham, Day, Riddle and Edgerton and other police officers, were aware that the Platinum Certificate was genuine, and that Mr Hamod was the lawful holder thereof, and that the allegations of UBS (presumably those referred to in (i) above) were false.

(v)        By reason of those injurious falsehoods committed by the State and UBS, Mr Hamod and Hamock were prevented from engaging in trade and commerce, and from selling or passing title to the Platinum Certificate, and Mr Hamod was unlawfully and wrongfully arrested, imprisoned, prosecuted and severely injured both physically and mentally, and in his reputation, and assets and business records of Hamod and Hamock were seized and detained by the State, and they were forced to breach trade and joint venture contracts, and Hamock and its subsidiaries were prevented from engaging in trade and commerce, and forced to close their businesses and suffer loss and damage accordingly.

51                  As stated by Trindade et al The Law of Torts in Australia 3^rd ed. 1998 at 183, the nature of the tort of injurious falsehood may be described as follows:

“The tort of injurious falsehood is essentially an action on the case for words that disparages the plaintiff’s goods. At different times and in different places this tort has been given different names : ‘slander of title’, ‘slander of goods’, ‘disparagement of property’ and ‘injurious falsehood’. Today it is generally accepted that the tort of injurious falsehood embraces all these actions on the case for words that disparage the plaintiff’s goods…”

However the notion of “goods” is not to be taken literally, and extends for instance to a person’s business. “The essence of the tort”, so the authors state at 186, “is that the falsehood deceives others about the plaintiff’s property or business so as to cause the plaintiff loss”. However the authors proceed to point out that the statement complained of must not be merely untrue, but must be published maliciously, and that there must be proof of actual damage as a consequence. There is some judicial debate about the characteristics of the tort. In a recent decision of the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 185 ALR 280, the elements of falsehood and intended harm were emphasised, and it was further said that it is the falsehood which must cause the harm complained of. The matters alleged in SC No 4 in relation to this cause of action appear to satisfy those principles.

52                  As to the cause of action for injurious falsehood framed in segment 20 of SC No 4, UBS first submitted that malice is a necessary integer of the cause of action, citing Palmer Bruyn and the earlier decision of this Court in Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1998) 21 ATPR 41-669 (at 42,537). Those authorities seem to me to place emphasis on falsity rather than malice, and I observe that the pleading expression in this cause of action uses throughout the words “injurious falsehood” (my emphasis). UBS then points out that the pleading attributes the conduct complained of to the Union Bank of Switzerland as well as UBS, notwithstanding that the latter is not a party to the proceedings. As earlier pointed out, the non-joinder of that apparent parent company is not essential (O 6 r 7). UBS further complains that it is pleaded that both UBS and the Union Bank of Switzerland were and remain aware that the Platinum Certificate “was and is genuine”, yet the allegation is immaterial in circumstances where the Union Bank of Switzerland is not joined as a party. Since it is not pleaded however that the awareness of UBS arose by virtue of the awareness of the Swiss parent company, the asserted awareness on the part the latter is merely otiose at worst.

53                  UBS next contended that particulars (i) and (ii) to par 20.3 of SC No 4 are respectively irrelevant and circular. That is true, but the consequence merely is that those particulars go nowhere, and therefore provide no support by way of particularity to par 20.3. I do not agree therefore that the same are correctly to be characterised as embarrassing.

54                  Thereafter UBS contended that pars 20.4 to 20.7 of SC No 4 “fail to plead the material facts establishing a causal connection between any injurious falsehood by [UBS] on the one hand and any loss or damage by the applicants on the other hand”. I do not think that the submission is substantially correct; I think that those pars should stand. SC No 4 makes it sufficiently clear that UBS intentionally set in train the events which led to Mr Hamod’s arrest and imprisonment, with consequences naturally flowing from those events to the circumstances of Mr Hamod to those of his trading company Hamock.

55                  Lastly it was submitted that the cause of action is statute barred. The reasons given in support of the submission point out that “… the claim for relief for injurious falsehood apparently relates to a cause of action which is alleged to have accrued prior to 11 May 1995, being six years prior to the filing of the amended statement of claim” next filed after SC No 2. However the conduct complained of is pleaded to have occurred “[i]n the period of December 1994 and April 1998”, consistently with the alleged continuing nature of the conduct complained of. Particularly in the light of O 13 r 2(7), I am of the view that the amendment should be allowed, and the reference to injurious falsehood contained in segment 20 should remain. Moreover the extent (if any) of time limitation by statute may be determined at the trial, in the light of the complexity of evidentiary material which will doubtless by then be tendered, and of the application thereto of the abovementioned Rule.

Cause of action for injurious falsehood pleaded against the State and UBS

56                  This cause of action is pleaded in segment 21 of SC No 4. What I have already said in the context of my introductory observations upon segment 20 may be taken to be also incorporated herein.

57                  The pleading of this second cause of action for injurious falsehood commences in par 21.1 by purporting to repeat, by way of incorporation, one of the applicants’ causes of action based upon ss 45D, 45DA, 45DB, 52 and 53 of the TP Act. Though I have ruled that the causes of action framed by SC No 4 upon the basis of the TP Act cannot stand and must be struck out, there is no reason why those pars 18.1 to 18.5 cannot be taken to remain within the scope of the pleading of this second cause of action for injurious falsehood, with such formal adjustment as might conceivably be necessary, in order to be consistent with these reasons.

58                  As in the case of the pleading of the first cause of action for injurious falsehood, UBS contends that there is a failure on the applicants’ part to plead all integers of the cause of action, apparently because only of the absence of pleading the integer of malice. It suffices to repeat what appears in [51] above by way of rejection of that submission.

59                  UBS next contends that pars 21.4, 21.5, 21.7 and 21.8 do not appear to be pleaded against UBS. That is at least literally true, save as to par 21.5, but I do not think that formal adjustment is essential. Thereafter UBS contends that this segment 21 “… fails to plead material facts establishing a causal connection between injurious falsehood by UBS on the one hand, and loss and damage to the applicants on the other hand”. In my opinion, it is tolerably clear that par 21.6 does purport to fulfil that pleading requirement, and that the submission, though having a degree of linguistic merit, is not substantially correct. There is no doubt that SC No 4 makes tolerably clear that it was at least largely by reason of allegedly false representations made, and false information given, by UBS and its parent company the Union Bank of Switzerland to police officers of the State, that the applicants sustained the injuries and damages complained.

60                  Thereafter pars 21.7 to 21.10 of SC No 4 take an enigmatic course. Each plead that “[by] reason of the aforesaid injurious falsehood and the facts pleaded hereinabove”, Mr Hamod, and separately Hamock, “were prevented from engaging in trade and commerce”, with various adverse consequences to each of them, and further that upon the footing in each case of those allegations, Mr Hamod and separately Hamock are entitled to various “[d]eterminations and declarations” as to the contravention by the State and UBS respectively of sections of the TP Act. Plainly the applicants are not entitled to declaratory relief for breach of provisions of the TP Act, by reference to conduct in the nature of injurious falsehood at common law. Clearly pars 21.7 to 21.10 are misconceived and must be struck out, and the relief available for the injurious falsehoods of the State and UBS the subject of segment 21 of SC No 4 therefore be limited to common law relief of the kind being sought in par 21.6.

61                  What I have said in the preceding [60] also clearly applies a fortiori in relation to the State, by reason of the matters to which I have referred in [21-25] above.

Breach of duty of care and “Torts” pleaded against the State

62                  This segment 22 of SC No 4 contains allegations against the State which for the most part are very grave indeed. A fundamental difficulty with the content of this segment is the absence of categorisation of the torts said to have been committed, other than so-called “breach of duty of care”, which obviously refers to the tort of negligence. The State submitted at the outset that police officers are immune from actions for negligence in respect of their activities in the investigation and suppression of crime, citing Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. The House of Lords there held that although police officers could be liable in tort to persons injured as a direct result of their acts or omissions, there was no general duty of care owed by them, as a matter of public policy, in respect of their activities in the investigation and suppression of crime. The serious allegations made in this segment of the pleading are far distant from the limited scope of that doctrine.

63                  In the present segment, the following serious allegations are made against the State, in relation to police officers, prison officers and officers of the Attorney-General’s Department:

(i)         notwithstanding that certain police officers became aware that the Platinum Certificate was genuine, they gave sworn evidence in the Local Court to the contrary, that is of course a serious allegation of perjury; those officers are duly identified in the pleading;

(ii)        telephone threats were made in mid February 1995 by a police officer to Mr Hamod that he would be kept in prison, and his property (including the Platinum Certificate and other records) withheld from him, until such time as he might release the State from claims as to damages;

(iii)       similar threats were made in May 1995 by officers of the Attorney-General’s Department;

(iv)       similar threats were repeated by “servants or agents” of the State in late June 1995;

(v)        at about 7:40pm on 11 July 1995, an officer of the Corrective Services Department, allegedly orchestrated by police officers, isolated Mr Hamod in a section of the Maximum Security Section of Long Bay Goal with a sentenced prisoner by the name of Appy, and stood and watched Appy assault Mr Hamod without reason or cause;

(vi)       after the attack, the officer refused medical help to Mr Hamod and walked away, leaving Mr Hamod bleeding and injured;

(vii)      Mr Hamod was not released on bail until about 15 July 1995, when so ordered by a Local Court Magistrate by reason of non-delivery of the police brief to the Court; by this time of course, Mr Hamod had been incarcerated for about seven months;

(viii)      Numerous requests on behalf of the applicants for release of the Platinum Certificate, and other assets and records of the applicants were ignored (and largely, as I understand the situation to be, remain at least largely ignored); and

(ix)       Threats were made on behalf of the State to bring additional charges against Mr Hamod, and against directors of Hamock, and to prolong the prosecution, and to continue to detain the Platinum Certificate and other assets and records of the applicants, in the absence of a release from claims for damages at the suit of the applicants.

64                  The foregoing grave allegations should be taken into account, in determining the outcome of the present strike-out proceedings, particularly in the light of the findings of the Local Court largely extracted in [34] of my judgment of 28 February 2001.

65                  In my opinion, the only substantial shortcoming of segment 22 is the generality of the heading thereto. Given the gravity of the allegations which I have summarised, being allegations which have been on foot for a considerable time, yet so far as the material on the Court file extends, have not been denied on oath by any officers of the Police force, the Corrective Services and the Attorney-General’s Department. I decline to strike out segment 22 of SC No 4, notwithstanding that the description “Breach of duty of care and Torts” constitutes an understatement of the gravity of the conduct elsewhere complained of by Mr Hamod, including torts of assault and/or battery, intentional acts inducing severe emotional distress, and unlawful interference with trade or business, each having recognition at common law.

Breach of further duty of care pleaded against the State

66                  The last segment of SC No 4 relating to common law causes of action is that headed “Breach of Duty of Care” and numbered 28, and which has been categorised in par 28.6 thereof by the description “negligence”. The scope of breach of that duty of care is described by par 28.2 as follows:

(i)         the failure to cause the office of the Attorney-General to properly and thoroughly investigate the State’s criminal allegations made against Mr Hamod and Hamock;

(ii)        the failure properly and thoroughly to investigate the information and documents supplied by Mr Hamod in October 1994 to Detective Superintendent Green and Detective Eastham of Nowra Police;

(iii)       the failure properly and thoroughly to investigate allegations of Interpol made to the Federal Police of Australia and to Nowra Police about the alleged theft of the Platinum Certificate from Galaxy, and to have obtained evidence about the authenticity of the Platinum Certificate;

(iv)       the failure to review the contents of discussions of the meetings held on 20 January 1995 in the premises of UBS at the National Australia Bank that were monitored by the police;

(v)        the failure to obtain legal advice about the conduct and allegations of UBS before arresting Mr Hamod and the directors of Hamock and the solicitor for Mr Hamod and Hamock;

(vi)       the failure to conduct a proper and thorough investigation of the facts relating to the charges which were intended to be laid against Mr Hamod;

(vii)      the failure to treat the applicants in a fair and impartial manner;

(viii)      the failure to ensure that the detention of Mr Hamod was lawful;

(ix)       the failure to ensure that a proper assessment was made of the material relevant to conducting the police interview with Mr Hamod;

(x)        the seizure, detention and damage to the assets and business records of Hamock;

(xi)       the failure to engage investigators and supervisors to investigate the activities of the police officers involved, and to have ensured that the police officers did not engage in criminal activities and with “malice towards its citizens”;

(xii)      the failure to restrain the police officers from selling or making press releases to the media;

(xiii)      the failure to withdraw false allegations made by police officers to the media;

(xiv)     the failure to have “stated the facts and supplied information about the facts [concerning] the said conspiracy between [the State and UBS] by [their] servants and agents;

(xv)      the failure to engage mediators and assessors to negotiate with and assist the applicants in mitigating “the loss and damage”;

(xvi)     the failure to prosecute the police officers of the State and the employees of UBS with criminal charges; and

(xvii)     the failure not to have “come forward and state the facts about what occurred between January 1994 and the current time”.

67                  I need not reproduce what is thereafter pleaded concerning the breaches of the alleged duties of care above recited, being breaches by way of failure to give effect, in terms, to the duties of care alleged, save to also mention that Mr Hamod further asserted that he would not have been arrested, and no prosecution of him would have taken place, or else the same would have been brought to a close by no later than 20 January 1995, and the applicants’ assets and records would not have been seized, damaged or destroyed, had the State fulfilled the duties of care above summarised. In the result, so Mr Hamod contended by way of conclusion to this further category of causes of action, he would not have suffered the severe injuries, losses and damages which he has particularised in detail in SC No 4.

68                  It is difficult to characterise any one or more of the foregoing allegations as falling within the purview of recognised torts of the common law. I observe nevertheless that the late Professor J G Fleming, in the last edition of his text book on torts earlier referred, referred to the following categories of tortious conduct which are here potentially relevant, and conceivably already within the scope of the causes of action at common law already pleaded:

(i)         committing assault and battery (pages 31-32) (ie notwithstanding its criminal nature as well);

(ii)        continuing the status quo of false imprisonment, being a species of trespass (page 34);

(iii)       intentionally inducing severe emotional distress (pages 37-40);

(iv)       wilful interference with contractual relationships (pages 758-759).

I am prepared to entertain an application to amend SC No 4 confined to any of the foregoing, to the extent which the same are not already encompassed therein in substance and effect, and in any event to the extent only that it would be just and fair to the respondents to do so. Each tends to reflect at least themes already appearing in SC No 4. However I do not propose to allow segment 28 in its present form.

Outcome of the strike-out applications including orders as to costs

69                  The outcome of the strike-out applications of UBS and the State may be summarised as follows:

(i)         The State has succeeded in relation to the five causes of action pleaded against it pursuant to the TP Act (segments 18, 21, 23, 24 and 27);

(ii)        UBS has succeeded in relation to the eight causes of action pleaded against it pursuant to the TP Act (segments 18, 19, 21, 23, 24, 26 and 27);

(iii)       The State has succeeded in relation to the cause of action for further breach of duty of care pleaded against the State (segment 28).

(iv)       Mr Hamod and Hamock have succeeded in relation to the cause of action for conspiracy pleaded against UBS (segment 14);

(v)        Mr Hamod has succeeded in relation to the cause of action for false imprisonment pleaded against the State (segment 15);

(vi)       Mr Hamod has succeeded in relation to the cause of action for malicious prosecution pleaded against UBS (described as causes of action for false imprisonment and malicious prosecution) (segment 16);

(vii)      Mr Hamod has succeeded in relation to the causes of action for trespass detention and conversion pleaded against the State (segment 17);

(viii)      Mr Hamod and Hamock have succeeded in relation to the causes of action for injurious falsehood pleaded against UBS, and additionally against the State and UBS together (segment 18);

(ix)       Mr Hamod and Hamock have succeeded in relation to the cause of action for injurious falsehood pleaded against the State and UBS (segment 21); and

(x)        Mr Hamod has succeeded in relation to the cause of action for breach of duty of care pleaded against the State (segment 22).

Adopting a broad perspective of the respective successes of the parties, as found by these reasons for judgment, I think that the justice of the situation according to my findings requires that each party should bear his or its own costs of the application, and that “the application” in that context should be treated as extending to SC No 3, and matters incidental thereto, particularly since the causes of action pleaded in SC No 3 were largely repleaded in SC No 4.

70                  It therefore follows that the applicants should have leave to file SC No 4 within 21 days, subject to such amendments as are strictly consequential thereto in conformity with these reasons. If the legal representatives for the applicants require further time so to do, I will entertain any application necessary to be made in fulfilment of that purpose. It is implicit in that observation that I propose to make orders as to common representation of the applicants, for reasons I will shortly indicate. I do not propose to implement such leave on the footing proposed by UBS and set out in [62] of my reasons for judgment of 28 February 2001. The justice of the situation requires in the circumstances that the applicants should have the benefit of O 13 r 2(7) of the Federal Court Rules.

Common representation of the applicants

71                  I addressed this issue in [57-59] of my reasons for judgment of 28 February 2001, where I indicated that I had decided in principle that an order for common representation of the applicants should be made. Since then the matter has been further pursued. Ms Keys of Counsel and her instructing solicitors have ceased to appear for either or both of the applicants for some time, and since their departure, Mr Wakeling has appeared as solicitor at least for Hamock.

72                  In my opinion I should now accede in principle to the request made by at least the legal representatives of UBS, if not also by the State, that I make an order for the common legal representation of the applicants in the proceedings. That will almost inevitably have the consequence that Mr Hamod will not be entitled to appear for the applicants in the proceedings, since he is of course not a legally qualified person, and a corporation may not, without the leave of the Court, carry on any proceedings other than by a solicitor (O 9 r 1(3)). As pointed out by Gyles J to Mr Hamod on 3 August 2000 in these proceedings, the general rule is that two or more applicants should have common representation, albeit that there is no “hard and fast” rule on the subject (Hamod & Anor v State of New South Wales & Anor) [2000] FCA 1100). Moreover I was told by Mr Hamod, during the course of submissions, that he had received the benefit of legal assistance in the formulation of SC No 4.

73                  It is plainly in my opinion in the best interests of the applicants, and indeed of the respondents, and of the expeditious and least costly disposal of the proceedings as possible, that the applicants have the compelling benefit of common representation by a legally qualified person. As I have said to Mr Hamod on several occasions, there is a real prospect of the current proceedings not being heard for an indefinite period of time, unless the same are conducted on his behalf and that of Hamock by a qualified person. Mr Hamod is unable to restrain his prolixity, for instance, in the formulation of pleadings, and the presentation of written and oral submissions to the Court. His prolixity was mentioned in the reasons for judgment of the Local Court extracted in [34] of my reasons for judgment relating to SC No 2. Mr Hamod is also far too emotionally involved in the proceedings to effectively present the same at the Bar Table, though in the light of some of the history disclosed in the reasons for judgment of the Local Court, perhaps understandably so. Common representation of the applicants will also be in the best interests of the respondents, in that they will have their entitlement to the benefit of a disciplined presentation of the applicants’ case. If Mr Hamod is disposed to oppose the course I have in mind for imposition of common legal representation upon the applicants, I will seek to require of him sound reasons, verified by affidavit and supported by documentation, demonstrative of financial inability to fund the litigation, and of bona fide attempts to obtain pro bono assistance. In that regard, I observe that he has the real estate interest in the City of Wollongong the subject of segment 27 of SC No 4.

Continuing jurisdiction of the Federal Court

74                  Since I have ordered that the applicants’ causes of action framed upon the basis of sections of the TP Act be struck out, the question arises as to the continuing jurisdiction of the Federal Court to hear and determine the remaining causes of action, all of which are founded upon the common law of Australia. In par 63 of my reasons for judgment relating to SC No 2, I indicated that I would entertain an application by any party to transfer or cross-vest the proceedings to the Supreme Court of New South Wales, and I referred in that regard to the decision of a Full Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 (Bowen CJ, Morling and Beaumont JJ) at 219. More recently Allsop J has produced on 10 September 2002 a comprehensive treatise headed Federal Jurisdiction and the Jurisdiction of the Federal Court of Australian in 2002. At page 20, the following appears:

“56.     When a right, as part of a claim or defence, which is said to arise under a law of the Parliament, is put forward by the party, the assertion of the federal issue, not its disposition, and not its merit, attracts the jurisdiction of the court to the relevant matter of which the federal issue forms part, unless the claim or defence is made colourably, that is not genuinely or as a ‘mere subterfuge’ in order to fabricate jurisdiction…

57.       Hence even if the federal issue is decided against the party raising it, or, it was, or became, unnecessary to deal with it, the matter of which it forms part does not cease to be federal jurisdiction. This is so even if the federal claim is struck out…”

75                  Among the many authorities cited is Burgundy Royale. In the light of his Honour’s conclusions cited above, I must leave it to the parties to take such steps (if any) as they might so choose, concerning the retention or otherwise of the proceedings in this Court in the light of my reasons for judgment.

Associate:

Dated:              31 October 2002