Hamod v State of New South Wales [2003] FCA 146

FEDERAL COURT OF AUSTRALIA

Hamod v State of New South Wales [2003] FCA 146

PRACTICE AND PROCEDURE – whether cross-vesting orders may be made in advance of finalisation of pleading of statement of claim – whether outstanding costs orders should be satisfied before making orders as to cross-vesting.

Jurisdiction of Court (Cross-Vesting) Act Cth 1987 (Cth) s 5(5)(b)(ii)

Hamod v State of New South Wales [2002] FCA 1348 cited ANTHONY HAMOD & HAMOCK INVESTMENTS PTY LIMITED v STATE OF NEW SOUTH WALES & UBS AUSTRALIA LIMITED N 643 OF 2000 CONTI J 5 MARCH 2003 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: 5 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Proceedings be restored to list on 20 March 2003 at 9:30 am for resolution of the Applicants' motion to cross-vest the same to the Supreme Court of New South Wales. 2. Costs reserved. 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: 5 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Following the delivery of my reasons for judgment of 31 October 2002 (Hamod v State of New South Wales [2002] FCA 1348), both of the Applicants have retained a Sydney firm of solicitors Stephen Smart & Associates to represent them in the proceedings, and that firm has in turn retained Mr Baran of Counsel. Notwithstanding the matters to which I drew attention in [74-75] of those reasons, the Applicants have decided to seek the cross-vesting of the proceedings to the Supreme Court of New South Wales, and understandably so, given that no federal statutory causes of action remain for resolution in consequence of the orders made pursuant to those reasons for judgment, and given perhaps a degree of uncertainty in the legal position discussed in [74-75] above. Counsel for the Applicants has also intimated that consideration is presently being given to the adoption of the course of maintaining only common law causes of action brought at the instance of the First Applicant ("Mr Hamod"), except perhaps that the subject of [66] of those reasons, to the entire exclusion of those brought at the instance of the Second Applicant ("Hamock"). 2 The First Respondent ("the State") opposes the transfer of the proceedings to the Supreme Court, at least until "an amended pleading has been filed" pursuant to the leave granted in the terms of Order 1 which I made on 31 October 2002, and which reads as follows: "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 actions at common law comprising segment 28 thereof." 3 What is susceptible to cross-vesting to the Supreme Court of New South Wales are "proceedings" in the Federal Court, and not an originating process per se such as a summons or statement of claim : see Jurisdiction of Court (Cross-Vesting) Act (Cth) 1987 (Cth) ("the Act"). There is therefore no reason in principle why an order for cross-vesting cannot presently be made, in the absence of filing a yet further amended statement of claim in conformity with my reasons for judgment of 31 October 2002. In those circumstances, a further amended statement of claim would of course need to be filed in the Supreme Court. There remains for consideration however, pursuant to subpar (b)(ii) of subs 5(5) of the Act, whether "the interests of justice", to adopt the relevant statutory expression, require that the transfer of the proceedings against the State should be deferred, as requested by the State, and as I apprehend, as will also be formally requested by the Second Respondent ("UBS"), until the applicants' statement of claim has been formalised to accommodate my reasons for judgment. 4 UBS also opposes the adoption of the course of action proposed by the Applicants, at least until the resolution of certain costs issues which it propounds as follows: (i) That a certificate of taxation of costs issued on 27 September 2002 in favour of UBS in the sum of $23,500.00, for which the Applicants' solicitors trust account cheque had only just been received by UBS' solicitors, should carry an accrued interest charge yet to be satisfied; the amount involved would however be relatively small; (ii) That an assessment of security for costs in the sum of $39,439.85 having been made by the Registrar of this Court on 27 September 2002, in respect of the period of time up to 24 September 2001, adversely to Hamock in favour of UBS, the same remains yet to be provided by Hamock; and (iii) Any other outstanding costs issues should also be resolved before any cross-vesting of the proceedings, including costs relating to an application for a writ for levy of property against both Applicants the subject of a notice of motion filed on 7 February 2003, the same relating to the abovementioned sum of $23,500.00. 5 UBS further opposed the cross-vesting of the proceedings to the Supreme Court of New South Wales, in any event, for reasons which it wished to articulate at an adjourned hearing, being in summary as follows: (i) a further statement of claim has not yet been formulated and filed by the Applicants' recently appointed legal representatives, pursuant to the leave granted on 21 October 2002; (ii) in any event, in conformity with the view expressed in [74] of my reasons for judgment of 31 October 2002 to the effect that the striking out of the statutory causes of action would not deprive this court of ongoing jurisdiction to resolve the common law causes of action, no order should be made for the cross-vesting, and the proceedings should remain in this Court. 6 I accordingly adjourned the proceedings to allow UBS the opportunity to finalise its approach to the cross-vesting application. Having considered the submissions of the Respondents to date, I appoint 20 March 2003 at 9:30 am to consider and resolve the Respondents' submissions, for which an adjournment was sought by the Respondents in any event, and any additional submissions which the Respondents may wish to make. I direct that the Respondents submissions be served on the solicitors for the Applicants on or before 5:00 pm on 11 March 2003, and be lodged at the same time with my Associate. Given that the abovementioned costs assessment of $23,500.00 has been satisfied, the notice of motion for issue of a writ to levy of property should presumably be dismissed. 7 In order to assist all parties, I should formally repeat what I have already foreshadowed, namely that the proceedings are susceptible to cross-vesting to the Supreme Court of New South Wales Common Law Division in their present state of pleading, albeit somewhat fragmentary, subject of course to omission of those causes of action which I have disallowed (see [69] of my reasons for judgment). However, I appreciate the desirability of the statement of claim of the Applicants being presented in a finalised form prior to cross-vesting, given the inconvenience which might otherwise be occasioned to a judge of the Supreme Court in coming to grips with the complexity of even the common law issues. 8 As was tentatively discussed on the last occasion, Hamock may wish to give close and immediate consideration as to whether its pleaded causes of action, as distinct from those of Mr Hamod, should be resolved, rather than be included in the proceedings to be cross-vested. I have previously stressed on a number of occasions that if Mr Hamod continues to press the range and magnitude of the damages' claims, it would be unlikely that the proceedings will ever be ready for trial, given the extent of interlocutory issues inherently involved. It must be very much in the interests of all parties that the proceedings be simplified, so that the merits or otherwise of Mr Hamod's grievances can be resolved with something approaching reasonable expedition. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.