FEDERAL COURT OF AUSTRALIA Hamod v State of New South Wales [2001] FCA 1389 COSTS – to follow event of successful strike-out application – leave to have costs taxed forthwith by reason of likely lengthy duration of proceedings – consequences to unsuccessful litigant in person and his unsuccessful co-litigant corporation – principles governing security as to costs. Australian Securities and Investments Commission Act 1989 (Cth) Banking Act 1959 (Cth) Trade Practices Act 1974 (Cth) Hamod v State of New South Wales [2000] FCA 1100 cited Hamod v State of New South Wales [2001] FCA 157 cited ANTHONY HAMOD and HAMOCK INVESTMENTS PTY LIMITED v STATE OF NEW SOUTH WALES and UBS AUSTRALIA LIMITED N 643 OF 2000 CONTI J 24 SEPTEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 643 OF 2000 BETWEEN: ANTHONY HAMOD FIRST APPLICANT HAMOCK INVESTMENTS PTY LIMITED (ACN 005 758 412) SECOND APPLICANT AND: STATE OF NEW SOUTH WALES FIRST RESPONDENT UBS AUSTRALIA LIMITED (ACN 003 059 461) SECOND RESPONDENT JUDGE: CONTI J DATE OF ORDER: 24 SEPTEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Applicants pay the costs of each of the Respondents of the original statement of claim filed herein and subsequently abandoned. 2. The Applicants to pay the costs of each of the Respondents of the strike-out proceedings relating to the amended statement of claim, including the costs of the proceedings held on 24 September 2001, with leave to have such costs taxed forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 643 OF 2000 BETWEEN: ANTHONY HAMOD FIRST APPLICANT HAMOCK INVESTMENTS PTY LIMITED (ACN 005 758 412) SECOND APPLICANT AND: STATE OF NEW SOUTH WALES FIRST RESPONDENT UBS AUSTRALIA LIMITED (ACN 003 059 461) SECOND RESPONDENT JUDGE: CONTI J DATE: 24 SEPTEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In my reasons for judgment of 28 February 2001 (see Hamod v State of New South Wales [2001] FCA 157), I left open for decision-making three issues: (i) common representation of the Applicants by the First Applicant in person (see [57-59]); (ii) security for the Respondents' costs in relation to the proceedings generally (see [60]); (iii) costs of the Respondents of their successful strike-out applications (see [61]). 2 On 11 May 2001, the Applicants filed a so-called amended statement of claim, which I shall refer to more appropriately the further amended statement of claim, since the same was preceded by the amended statement of claim the subject of my orders as to striking out. Though not of the length of the earlier amended statement of claim, the further amended statement of claim nevertheless extends to 78 pages, and purports to plead, in addition to common law causes of action, statutory causes of action based upon the Trade Practices Act 1974 (Cth), the Australian Securities and Investments Commission Act 1989 (Cth) and the Banking Act 1959 (Cth). The application accompanying the further amended statement of claim is some 12 pages in length. 3 Even a cursory perusal of the further amended statement of claim, which I would infer to have been drafted at least to a major extent, if not wholly by the First Applicant, who is not of course a legally unqualified person, discloses that little or no regard has been paid to my reasons for judgment of 28 February 2001, in so far as the same related to the pleading of purported causes of action and consequential losses. In subsequent directions hearings, Mr Hamod informed me several times that he has been taking steps to obtain legal representation, implicitly for both himself and the corporate Second Applicant, having earlier dismissed the counsel who represented the Second Applicant on the strike-out application. However seven months after I handed down judgment on 28 February 2001, Mr Hamod is acting for himself and his company. I have constantly urged him to obtain legal advice throughout that time, in particular advice as to whether the causes of action to be pursued in the proceedings should be confined to common law proceedings, mainly as for false imprisonment in the light of the reasons for judgment in his favour delivered by Magistrate Horler, and preferably at the instance of himself alone to the exclusion of the Second Applicant. In those circumstances of course the proceedings would be appropriate for cross-vesting. I have gained the clear impression, however, that Mr Hamod is determined to pursue claims of immense complexity and prolixity, and for massively unrealistic damages awards, which will be unlikely to be capable of resolution in the foreseeable future, except as a result and to the extent of conclusive strike-out applications. 4 I informed Mr Hamod on 21 September 2001 that I would conclude judgment upon the issues as to costs and security for costs, being issues for so long left unfinalised by my judgment of 28 February 2001. I appointed 24 September 2001 for that purpose, because that day had become available to me on short notice, due to the briefly postponed commencement of resumption of certain part heard proceedings in which I am currently engaged. 5 On 24 September 2001, having unsuccessfully sought leave on the preceding Friday afternoon to appeal to the Full Court against my appointment of such hearing date for the purpose of finally resolving the long outstanding costs issues left outstanding on 28 February 2001, the First Applicant announced to the Court that he intended to appeal "all your decisions", and courteously withdrew from the proceedings being conducted on that day. 6 I thereupon received submissions from counsel for each Respondent in the absence of the Applicants to the effect that reasonable notice and warning of strike-out applications and/or the hearing thereof had been given. Since each of the Respondents had wholly succeeded on their respective strike-out applications, I accepted their submissions that costs should follow the event in each case, and that each of the Respondents is entitled to orders for payment of its costs thereof, including the Respondents' costs relating to the hearing on 24 September 2001, though not on an indemnity basis as sought by the Second Respondent. I further ordered that the costs of the initial statement of claim, which was subsequently abandoned by the Applicants, should be paid by the Applicants. 7 The Respondents applied for leave for the costs the subject of such orders to be taxed forthwith. Having regard to the likelihood of the present proceedings continuing indefinitely into the future without a hearing date being fixed, because of the Applicants' persistent impermissible pleading of lengthy and prolix matters of evidence rather than only such material facts as are essential ingredients of permissible causes of action, I further ordered that leave be granted to the Respondents to apply for the taxation of their respective costs the subject of my order forthwith. 8 I decided however to stand over the matter of security for costs being sought from the Second Applicant by the Second Respondent until taxation of the Second Respondent's costs has taken place before the Registrar, so that I will have a benchmark for the sum to be the subject of the initial order as to security for the Second Respondent's costs in the proceedings. I record that consistent with authority, no order has been sought for security for costs against the First Applicant personally. When a date has been fixed for the hearing of the applications for security for costs being sought from the Second Applicant, the existing evidence thus far filed on the subject will need to be updated. 9 As to the matter of common legal representation, the Applicants are on notice that at least in relation to any future contested proceedings before me, common representation will not be permitted to the Applicants, and I should draw attention to Order made by Gyles J on 2 August 2000 in that regard (Hamod v State of New South Wales [2000]FCA 1100). I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti . Associate: Dated: 28 September 2001 Counsel for the First and Second Applicants: The Applicant appeared in person on behalf of both Applicants Counsel for the First Respondent: Ms V Hartstein Solicitor for the First Respondent: Crown Solicitor Counsel for the Second Respondent Mr MR Speakman Solicitor for the Second Respondent Allen Arthur Robinson Date of Hearing: 24 September 2001 Date of Judgment: 24 September 2001